28 July 2009

In defence of Jeffrey Toobin

Some people are surprised that Jeffrey Toobin pointed out that:

“You know, it’s funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing- that is just the law that is changed. But if you look at the Second Amendment, that’s something that’s changed dramatically over the last- for 50 years, including when I was in law school, which was more recently than 50 years ago- the idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it- we have it in our system- you know, speaks of a well-regulated militia and the right to bear arms.”

I am not surprised. What most people who haven't attended law school don't realise about the "New Scholarship" surrounding the Second Amendment is that it is indeed very recent. You could count the scholarly legal writings about the Second Amendment when I went to law school on one hand!

The civic right was the accepted legal belief.

I asked my conlaw prof why we didn't study the Second Amendment and his response was "if you think things were bad (emotionally) when we studied Roe v. Wade. they get even more heated when discussing the Second Amendment." because the Civic right was the accepted legal precedent.