Man Without Qualities

Friday, May 10, 2002

Exercising A Second Amendment Right to Remain Silent?

Professor Eugene Volokh has committed a fine article regarding the Second Amendment to I have submitted the following letter to regarding that article. The letter will appear or not in the applied judgment of the Journal editors, presumably James Taranto, as follows:

"Professor Volokh's interesting article is disappointingly silent on a question which is key to understanding how big an impact judicial recognition of the Second Amendment as an individual right would have: would such a right be binding on the States through the so-called "incorporation doctrine." Professor Volokh's argument suggests that the right - as he conceives it - WOULD bind the States. He equates the "right of the people to keep and bear arms" with the "the right of the people to be secure . . . against unreasonable searches and seizures" or "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." These latter two rights have long been held to constitute "fundamental rights" which bind the States (as well as the Federal Government) under the incorporation doctrine. In contrast, Professor Volokh does not suggest that Second Amendment rights are more like the individual right to a civil jury created by the Seventh Amendment, which bind ONLY the Federal government. The differences would be immense, both practically and from the standpoint of Constitutional theory. Professor Volokh notes that the severe gun control statutes of the District of Columbia might be inconsistent with this renewed view of the Second Amendment. Fine. But the laws of the District are FEDERAL laws - so no decision as to applicability of incorporation doctrine is needed in that case. But what of the restrictive gun control laws of, say, New York City? Does the Second Amendment require that New York's gun control laws pass scrutiny for potential conflict with a "fundamental right to bear arms?" Perhaps they should - but New Yorkers would probably want to know. With respect to Federalism, can it be that somehow in the excitement of Reconstruction, the Republic imposed the Second Amendment on the States through principles contained in the Fourteenth Amendment - the source of the "incorporation doctrine"? Such a holding would be as big an act of judicial activism as anything perpetrated by the Warren or Burger Courts. Such an act may or may not be justified. But it definitely needs to be discussed and examined."

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