The First Two Amendments
Mark.Scarberry at pepperdine.edu
Thu Mar 4 08:08:37 PST 2010
In response to Eric:
Perhaps that's because from the time of Reconstruction until relatively recently the right to own weapons for self-defense and hunting may not have been seriously burdened. Someone can tell us whether state laws against African Americans owning weapons survived Reconstruction (or were revived after Reconstruction) and whether such laws were challenged judicially. If not, then perhaps it's not until the latter part of the New Deal (1939, U.S. v. Miller) that the issue was addressed seriously by the courts (let alone, as Eric seems to require, by the Supreme Court), and at that point the Supreme Court was in retreat.
But I haven't studied the history of gun control laws and thus could be mistaken.
I suppose we probably could come up with other constitutional provisions that have not been enforced by the Supreme Court but yet are obviously still enforceable if the need were to arise. Perhaps the Third Amendment?
From: conlawprof-bounces at lists.ucla.edu on behalf of Eric Segall
Sent: Thu 3/4/2010 5:11 AM
To: volokh at law.ucla.edu; conlawprof at lists.ucla.edu; chmyankel at live.com
Subject: RE: The First Two Amendments
How is it that the Constitution contained this enumerated right to bear arms but the right was never applied by the Court to individuals until 2007? For those who care about history (whether it is originalism or Barry Freidman's idea of continuing evolutions of history), was the Court just wrong all those years? This is not like other provisions that the Court has not addressed (such as the President has to be 35) because we have never had a 34 year old run. But there have been state and federal gun laws forever, and they have been challenged, and in lower courts and the Supreme Court. Is it possible that there is a little hubris to the idea that all the other Courts were wrong and this one is right?
And before thoose on the right criticize me for being inconsistent, let me add that I think Roe, Lawrence, Plyer, etc., were all incorrectly decided.
In fact, I think that the fact that the Constitution specifically mentions "arms" though in an ambiguous way (because of the Militia Clause) makes my argument even stronger. It's been there are along but Courts in every other generation got it wrong?
Ga. State College of Law
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