Journal pudge's Journal: Guns Guns and Mo' Guns 4
So I grabbed the opinion of the recent DC gun case (opinion), and I came across this portion, opening the dissent:
As has been noted by Fifth Circuit Judge Robert M. Parker in United States v. Emerson, exhaustive opinions on the origin, purpose and scope of the Second Amendment to the United States Constitution have proven to be irresistible to the federal judiciary. The result has often been page after page of "dueling dicta"--each side of the debate offering law review articles and obscure historical texts to support an outcome it deems proper. Today the majority adds another fifty-plus pages to the pile. Its superfluity is even more pronounced, however, because the meaning of the Second Amendment in the District of Columbia (District) is purely academic. Why? As Judge Walton declared "the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment's reach does not extend to it."
Translation: "whether the Second Amendment represents a collective right or individual right is irrelevant, because it represents a collective right."
Or for you sports fans, "whether or not Brady fumbled is irrelevant, because he fumbled."
You may recall the Second Amendment reads:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
The only way to bring in the notion that the scope of the Second Amendment is limited to states is to read it as a collective right, which is precisely what the majority decision rejected. This is perhaps the worst logic I've ever witnessed in a court decision this high up in our federal judicial system.
To be clear, I am not saying the idea that the Second Amendment only applies to states is terrible logic (though I think it is certainly mistaken, and Judge Karen LeCraft Henderson's appeal to stare decisis from a decision nearly 80 years ago is entirely unconvincing to me, as that principle is a guideline, not a required rule). I am saying her argument -- that whether the Second Amendment only applies to states is irrelevant because the Second Amendment only applies to states -- is totally bay.*
I could write a lot about whether the Second Amendment is an individual or collective right, but that is broader than the scope of this journal entry.
* This is a new word a friend of mine coined: "bay" as in "gay" as in "retarded." Named after Michael Bay. It is less offensive to pretty much everyone, except for, I assume, Michael Bay.
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My hope (Score:2)
Will be interesting to see how many gun control laws will stay standing if that is the case, at the very least I think the NYC gun law is a gonner.
I'll also agree the circular reasoning in the dissent is almost painful.
You're kidding me ... (Score:2)
They actually proposed that? With a straight face? That's ludicrous. Yes, clearly the founders meant American citizens should only keep flintlocks. Forever more. And you know, since you already think this only applies to militias, how about we equip the National Guard with flintlocks? That'd be swell!
Using their logic we only have the right to petition if w
Re: (Score:2)
They actually proposed that? With a straight face? That's ludicrous. Yes, clearly the founders meant American citizens should only keep flintlocks. Forever more. And you know, since you already think this only applies to militias, how about we equip the National Guard with flintlocks? That'd be swell!
Yeah. :-)
Again, she is question-begging, and you hit the nail on the head: if the National Guard can have certain guns, and in your view this is justified because they are a militia under the Second Amendment, then the only way to say that citizens cannot have those guns is to say that the Second Amendment is not an individual right, which the majority rejected (because it is clearly false).