Here’s the
question:
@m10001 Bob what do you think of Akhil Amar's 2nd and 14th Amendment jurisprudence views and Laurence Tribe's vacillations?
Here's the
answer:
The Second Amendment is very poorly drafted: "A well
regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed." It doesn't
say whether a right to keep and bear arms is a right of individual persons or a
corporate right of the citizenry of the particular states. One cannot resolve
this conundrum with pure originalism and some other principle or principles
must be used to solve the problem. Now this is a blog post instead of a law
review article or book, but I was taught in law school that individuals
asserting their Second Amendment rights to keep and bear their individual arms
lost their cases. That's turned out to be less true than I was taught, but District
of Columbia v. Heller, 554 U.S. 570 (2008) surprisingly upheld
Heller against the District and was confirmed and expanded in McDonald
v. Chicago, 561 US 3025 (2010) by enforcing the Second Amendment
against the states through the Fourteenth. Insofar that Amar is arguing
that "other principle or principles" exist, I agree with him, though
I may not agree with his specific principles.
As for
Tribe, his problem is that he needs seven pages in a textbook to explain his
views. It's not weird that even a lefty like Tribe would find a federal
confiscation of all firearms unconstitutional. How close to that line would be
acceptable is unclear to him. He appears to me to be intellectually honest not
to be supportive of absolutely any gun control.
I speak
about law here, not about what policy would be prudent. It appears to me that
not all federal or state weapons regulation would offend the Second Amendment
(federal) or the Second Amendment through the Fourteenth (state). If the feds
confiscated a homemade nuke, I don't think a Second Amendment defense would
work, not even here in Texas.
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