The First Two Amendments

[Eric Segall]

I would like to hear about another constitutional provision protecting an individual right that has an alleged textual basis in the Constitution, that state and federal laws have limited, and that the Court in the 20th century held was not an individual right that the Court would enforce today despite that precedent. I'm not saying there isn't one, but I'd be curious what it is. 

I think this is important only because, as a very general proposition, those in favor of a broad reading of the Second Amendment often argue in favor of judicial deference and it seems to me that deference is especially appropriate here as the needs of small towns in rural areas are obviously different than the needs of big cities etc. As policy matter, normally Scalia and Thomas would be yelling about how the Court should not step into a politically controversial area and formulate national rules etc. And, if you are going to argue the right is textually based and that's why it is different, I would respond:

1) The Ninth Amendment seems to provide textual support for rights not listed (like the right to engage in consensual private sodomy)
2) The Second Amendment is ambiguous (much more so than the Ninth Amendment)
3) The Court frequently doesn't care about text anyway (the 11th Amendment for example).

If the Court, and others, wanted to only apply the Second Amendment to the feds, or not to individuals at all, there are many legalist ways of getting ther far more persuasive than Hans v. Louisiana or Printz v. United States (for example). This is not about text and history or constitutional interpretation, it is about policy, just like Roe, Lawrence, Lochner, Brown, etc.

Eric

>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 03/04/10 11:13 AM >>>
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?
 
Mark Scarberry
Pepperdine

________________________________

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?

Eric Segall
Ga. State College of Law
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