Constitutional protection for devices and activities that can kill people

[Raymond Kessler]

I think much of the discussion missed the point that no constitutional right
(except perhaps the right to believe) is absolute.  Scalia concedes that the
Second Amendment is not absolute, permitting, for instance, bans on
convicted felons possessing firearms.  His remarks that policy choices are
limited by the Constitution does not change the fact that no rights are
absolute and some already-established gun control  laws are constitutional.
Further, consideration of probable negative consequences would seem to be
part of strict scrutiny and intermediate standards of review.

 

Ray Kessler

Prof. of  Criminal Justice

Sul Ross State Univ.

 

 

 

 

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jonathan H. Adler
Sent: Friday, April 10, 2009 7:58 PM
To: 'Steven Jamar'; 'CONLAWPROFS professors'
Subject: RE: Constitutional protection for devices and activities that can
kill people

 

While Scalia does (somewhat gratuitously) argue that the Boumediene decision
will result in more deaths, he does not present this as a reason for
reaching a contrary result.  Rather, he explicitly says that the negative
practical consequences he predicts "would be tolerable if necessary to
preserve a time-honored legal principle vital to our constitutional
Republic" and that, in his view, the substance of the opinion represents an
"abandonment of such a principle."  This is wholly consistent with his
position in Heller that the practical consequences should not be
determinative of the constitutional question.

 

JHA

 

------ 
Jonathan H. Adler 
Professor of Law 
Director, Center for Business Law & Regulation 
Case Western Reserve University School of Law 
11075 East Boulevard 
Cleveland, OH 44106 
ph) 216-368-2535 
fax) 216-368-2086 
cell) 202-255-3012 
 <mailto:jha5 at case.edu> jha5 at case.edu 
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995
  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, April 10, 2009 5:31 PM
To: CONLAWPROFS professors
Subject: Re: Constitutional protection for devices and activities that can
kill people

 

The erstwhile textual argument of Scalia in Heller is belied by his
functional argument in Boumediene that the decision would lead to more
deaths.

 

-- 

Prof. Steven D. Jamar                     vox:  202-806-8017

Associate Director, Institute of Intellectual Property and Social Justice
http://iipsj.org

Howard University School of Law           fax:  202-806-8567

http://iipsj.com/SDJ/

 

A word is dead

When it is said,

Some say.

I say it just

Begins to live

That day.

 

Emily Dickinson 1872

 

 

 

On Apr 10, 2009, at 5:12 PM, Miguel Schor wrote:

 

I thought the point of Heller is that the policy implications of a decision
(i.e., whether the decision leads to greater homicides) don't (and
shouldn't) matter; only the words of the 2d amendment and, of course, it's
supposed original meaning matter.  In any case, if the public policy
implications of a constitutional issue matter (a point I wholeheartedly
concur in), then legislatures have a role to play as well in construing the
Constitution and should be afforded some discretion, no?  I would love for
the Court to drop originalism and to take the policy implications of its
decisions into account but why should its reading of the empirical evidence
trump that of a legislature?   

Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730
 
 


---- Original message ----


Date: Fri, 10 Apr 2009 14:42:10 -0500
From: "Raymond Kessler" <rkessler at sulross.edu>
Subject: RE: Constitutional protection for devices and activities that can
kill people
To: "'Bob Sheridan'" <rs at robertsheridan.com>,"'Volokh, Eugene'"
<VOLOKH at law.ucla.edu>
Cc: conlawprof at lists.ucla.edu
>Much of the legal debate on guns and crime is meaningless if there is no
causal connection between guns and people killing other people. There is no
credible, consistent research evidence of a causal connection between guns &
homicide or that gun control is effective in reducing homicide.
>
>Ray Kessler
>Prof. of Criminal Justice
>Sul Ross State Univ.

 

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