Finally Some Thoughts on the The DC Gun Case
Originally published at The Mouse's Tale. You can comment here or there.
Well, it took me long enough, but I think I finally made up my mind about DC v. Heller. Despite everyone on both sides of the issue being absolutely convinced of the correctness of their positions, I actually found this case to be pretty hard. Much to my pleasant surprise, ( Read more... )
I anticipated this:
The reason I point this out is to bring up another rule of textual interpretation which guides my thinking about the Second Amendment. The rule is the often cited admonition that laws are to be read as a whole... In the case of the Fifth Amendment, reading it as a whole clearly shows that it is talking about rights afforded related to criminal prosecution by the government, not two random guys walking down the street.
... but I wasn't sure if the Fifth did only apply against government; or if it did, if that part was incorporated and if that made it individually applicable (it shouldn't, but incorporation does wacky things, always.) I'll be the first to say that I'm not a fan of "finding" unenumerated "rights" in the Constitution; (like the "privacy right,") but perhaps the much lower codification of the "right to self-defense" in common law makes sense here- bear with me for a moment.
The right to self-defense has long been recognized in common law; right back to Ye Olde England. It is obvious, however, that the effective ability of an individual to effectively defend himself relies entirely on his having access to implements of equal effectiveness to what his most likely assailants will have.
In effect, the Second is what makes that common-law "right" possible in the first place. As you say, the "right to self-defense with a gun" is not in the Second, and should not be sought there. The Second deals with firearms in a broad sense; the regulation of such specific implementations of it is exactly why common law exists in the first place. (When I refer to "this implementation" below, realize that I refer only to that specific use of the Second Amendment right to a firearm; using that firearm in self-defense. I am not claiming that the self-defense portion is inherent anywhere in the Second.)
The question, then, is if denying someone the right to self-defense with a gun seriously impacts upon their ability to exercise the Second as a whole- if that common-law right is a significant enough specific application of the Second as to qualify as part and parcel of the Second itself.
In addition to this, there is the consideration of the larger context that the Justices were writing their arguments in- I need not elaborate on how this was both a case regarding a single, specific petition (the security guard seeking to keep his firearm in his home;) and also as a global decision on the Second itself, in a sweeping abstract sense. In addition, the "right to self-defense with a gun" is the one specific application of the Second which is most debated in the public sphere and is considered by many (with good reason and even better arguments) to be the lions share of the point of the Second, on the level of practical application. This might have induced the Justices to phrase their arguments and final writings the way they did: speaking of the Second in the terms of one of it's most specific applications; (one that also drags in the matter of self-defense, which are linked at that lower level but make an odd non-sequitor when discussed at the highly abstract level of the Constitution.) This also allows them to address the matter of the petitioner directly, and yet also the much more sweeping and abstract matter of the Constitutional question; which, naturally, creates language that throws strict Constitutional thinkers like you and I into a loop.
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