10 October 2009

Cass Sunstein: "The Second Amendment: The Constitution's Most Mysterious Right"

I do have to admit that I disagree with him that the "civic right" interpretation, which is that the right under the Second Amendment belongs to the militia, is a fraud. It is well supported by the discourse from the time of the adoption of the Second Amendment.

The problem is that it is indeed hard for 21st century minds to understand the Second Amendment and what violates it. Although, I think this quote from Story's commentaries regarding Article 1, Section 8, Clause 15 is most illuminating:
At one time it was said, that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence.

The current use of the National Guard in Iraq and Afghanistan is a violation of my Second Amendment right.

Actually, if one reads the debates, it is quite obvious that a large standing army created in detriment to a local defense force is a violation of the Second Amendment.

The use of firearms outside of militia service is not within the scope of the Second Amendment (no standing).

The Swiss system is a wonderful example of what the framers had in mind. In this system, the use of the service rifle outside of militia duties is strictly forbidden

Another problem with this analysis was that it was pre-Heller. That means the survey of Scholarship is valid, but it does not deal with the fact that Heller basically trashes the Second Amendment by trying to come up with a nebulous individual right. Anyone who has actually read this opinion is disappointed by it as my posts mention.

The problem is that Heller tries to find an individual right rather than reiterate the precedent of Miller which is:
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense. to paraphrase UNITED STATES v. MILLER, 307 U.S. 174 (1939)

The problem is that no one will be happy with the outcome of a proper decision, but being a judge isn't about popularity.

So, finding an individual right just to find one makes no sense.

Cass Sunstein is Karl N. Llewellyn Dist. Service Professor of Jurisprudence at the University of Chicago Law School. This talk was recorded on October 23, 2007 as part of the Chicago's Best Ideas Series. Description: What does the Second Amendment mean? The Supreme Court has not told us, and the history seems shrouded in mist. Professor Sunstein will argue that as a matter of history, the Second Amendment probably does not create an individual right, because it was designed to protect state militias. Modern readers have immense difficulty in recovering the original meaning, because our circumstances are radically different from those of the founding. He will also argue, however, that the Court should not reject an individual right, in part because the nation is so polarized. The discussion will have many implications for constitutional interpretation and the role of the Court in political life.