A lot more rests on D.C. vs Heller than the Supreme Court's legitimacy

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Glenn Reynolds is exactly right here when he says that the Supreme Court has a lot more riding on D.C. vs Heller than it may think:

But the Court, too, has something at stake-its legitimacy. If the Court ignores millions of Americans' belief that the Amendment protects some individual right while continuing to invalidate laws infringing on unenumerated rights, the Court might hazard its de facto interpretive supremacy. As Laurence Tribe reminds us, when there is "a deep national dissatisfaction with the way constitutional law . . . has . . . resolved a matter," "We the People" seek constitutional amendments.15 Four times in the past, Article V has been used to reverse Supreme Court cases deemed deeply flawed. Heller could occasion a fifth.
Most people are not lawyers and do not think like lawyers. For that very reason, most people are disposed to read the phrase, "A well regulated Militia, being necessary to the security of a free State" as an explanation for the second amendment's purpose that has no practical bearing on the second half: "the right of the people to keep and bear Arms, shall not be infringed." The same would hold true if the first amendment were to say, "free speech being necessary for the health of our republic, the Congress shall pass no law abridging freedom of speech or of the press." Most people would instinctively read that first part as a rhetorical flourish, not a statement of law that limits the first amendment to political speech that is spoken in a political setting.

I think Reynolds, true to his reputation, is being too mild-mannered here. If the Supreme Court does not recognize an individual right, it will actually do far more damage than any other incident in the history of the court to the court's legitimacy in the eyes of many millions of Americans. Unlike abortion, which can be sophistically handled under the 9th amendment, there is no doubt that the second amendment guarantees a general right to the public every bit as much as the first amendment. Most people would rightly see such a ruling as a power play by the Supreme Court to rewrite the text of the Constitution to mean whatever it wants.

I'll go a step beyond Reynolds and say that if the Supreme Court gets this case wrong, one amendment won't do the trick. Instead, a new constitutional convention will be in order.

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4 Comments

Most people don't realize that Congress can simply overrule the Supreme Court and/or impeach them.

Should have been done with Kelo which I see as only 2nd place behind Heller. Property rights and the right to defend it. The lynch pins of liberty.

If the Court rules in favour of the individual right interpretation, you could start to see challenges to all sorts of gun-related stuff. Here are some previous Supreme Court rulings that may come into play:

No State shall convert a liberty into a privilege, license it, and charge a fee therefor.

- Murdock vs. Pennsylvania, 319 US 105

If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.

- Shuttleworth vs. City of Birmingham Alabama, 373 US 262

The Court is to protect against any encroachment of constitutionally secured rights.

- Boyd vs. U.S., 116 US 616

Where rights (liberty) secured by the Constitution are involved, there can be no legislation which would abrogate (abolish) them.

- Miranda vs. Arizona, 384 US 436 (1966)

An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation as though it had never been passed.

- Norton vs. Shelby County, 118 US 425


With any luck, we could all see the end of Form 4473, the bound-book, the full-auto tax, and open/concealed carry regulations. I'm not holding my breath for any of that, but a man can dream, right?

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