Posted 1:52 PM by Robert

Individual, Not Necessarily Fundamental

How Appealing has an interesting post that takes a blogosphere-contrarian view approving the U.S. Court of Appeals for the Ninth Circuit opinion in Silveira v. Lockyer that ruled, in an opinion by Circuit Judge Stephen Reinhardt, that the so-called "collective rights view" of the Second Amendment is the correct one.

The Man Without Qualities does not agree with How Appealing that Judge Reinhardt is brilliant, or that his opinion is persuasive or correct - but I do believe that How Appealing's conclusion "that the Ninth Circuit's understanding of the Second Amendment will be affirmed" is very likely - perhaps probably - correct. But I think this has more to do with the fact that the "individual rights" proponents have not really done their homework and legwork to prepare the public and the judiciary for what is, in fact, a radical revision of the longtime common understanding of Second Amendment precedent - even though that common understanding is wrong and does not reflect actual Second Amendment precedent. Indeed, what appears to be a pretty serious error on Mr. Bashman's part in presenting the competing views of the Second Amendment actually demonstrates how poorly the "individual rights" contingent has tilled their field.

Mr. Bashman writes that that the "Second Amendment to the U.S. Constitution guarantees to individual private citizens a fundamental right to possess and use firearms [is] an understanding known as the 'individual rights' view" and that "the Ninth Circuit's decision perpetuates a conflict with a recent ruling of the U.S. Court of Appeals for the Fifth Circuit that stands as the first ever federal appellate court ruling to endorse the individual rights view of the Second Amendment." Mr. Bashman is a highly sophisticated, intelligent and knowledgeable person - so perhaps is correct. But I do not believe the Fifth Circuit's opinion is fairly read as even reaching the question of whether the right that Court holds exists under the Second Amendment is a fundamental right.

To view the Second Amendment as creating a right that inures to the individual does not by itself imply that the right is fundamental. For example, the Seventh Amendment right to a civil jury inures to the individual - but is definitely not fundamental. As a consequence, for example, this Seventh Amendment right only binds the federal government - and is not "incorporated" through the Fourteenth Amendment to bind the States. Whether the Second Amendment creates a fundamental right as well as a one that inures to the individual would also be a rather serious factor in determining the standard and scope of review a court will take in evaluating whether particular legislation violates that right.

The Fifth Circuit did hold that the Second Amendment does not create a mere "collective right" - it creates a right that inures to the individual. In that sense the Fifth Circuit upholds the "individual rights" view of the Second Amendment, but the ease with which the Fifth Circuit allows the government to limit this right does not suggest that the right is fundamental:

"We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights."

Whatever else we know about the meaning of the Second Amendment, one thing is absolutely clear: The Second Amendment did not originally bind the States - and no amount of historical analysis is going to suggest that it did - simply because NOTHING in the Bill of Rights bound the States. Whether the Second Amendment should now be construed to bind the States will turn on the dubious "incorporation doctrine" which arises out of the 20th and 21th Centuries' reimagining of the Civil War Amendments.

Why did the "incorporation doctrine" leave the Seventh Amendment behind while entirely new rights - such as the right to privacy and the right to "choose" were created out of thin air? Why was the ringing language of the Ninth Amendment all but excised from the Bill of Rights? Why has the Tenth Amendment been construed as a tautology? Who knows? But the Supreme Court's cases and reasoning on such matters as well as the musings of legal academics are mostly dross supported by highly political arguments and circumstances.

It was always naive and preposterous for the proponents of the "individual rights" view to hope or think as they did that the courts could first be persuaded that the Second Amendment creates a right inuring to the individual and then, as a kind of afterthought, that the right must be "fundamental" because most of the rights found in the Bill of Rights are "fundamental." The Second Amendment poses unique (but not insurmountable) issues not present in connection with, say, the First, Fourth, Fifth, Sixth, Seventh or Eighth Amendments if it is applied to the States through 'incorporation" - as opposed to the federal government. The purpose of the Second Amendment is to facilitate a "well regulated militia." Even if the "militia" is essentially construed to be every adult individual, what entity is supposed to do the "regulating" of this militia if not the States? The failure of the "individual rights" proponents of the Second Amendment to address both the real world dynamic of modern constitutional law or the full scope of the "incorporation doctrine" issues raised by their arguments was a very serious conceptual and strategic mistake.

And - in my opinion, which might be wrong - that failure, more than anything else, makes How Appealing's conclusion highly credible.