19 March 2008

the strict constructionist and the Second Amendment

I read that any law which does not literally impinge on an explicitly enumerated right in the Constitution passes judicial scrutiny according to the strict constructionist view.

Now, I just did a search of the constitution for self-defence, and nowhere is that term mentioned. Which means that self-defence is not a constitutionally protected right.

Again, as I mentioned in my posts on the Heller Oral arguments, the Second Amendment does not mention this. Self-defence is a common law concept, not a constitutional one.

If the object of Justices Scalia, Thomas, and Alito is to not impinge upon an expressly enumerated right, then the District's gun laws do not. Self-defence was not at issue when the Second Amendment was drafted and is not an enumerated right in the constitution.

On the other hand, the establishment of a standing army was the issue.

The Second Amendment is a dead letter, especially regarding the right of an individual to own a firearm for self-defence. Self-defence was not a concern.

Justice Kennedy's frontier farmer could be scalped and the women raped for all the "people" who wrote the Constitution cared. The issue was not self-defence, but assure the continuation and render possible the effectiveness of the body organised under Article I, Section 8, which at that time was called the militia and is now the national guard.

To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe. It is to create a Constitutional right where none existed. It is to forgo public safety for no sane reason. Worst of all, it is to second guess legislatures and destroy the rule of law.

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