Scalia on the Loose
(posted by Daniel Koffler)
Richard Posner has a piece at TNR attacking the Heller decision as without “any principles,” which absence “supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.” Right on, and get the smelling salts ready. Posner specifically shows in painstaking detail that so-called originalism not only fails to support Scalia’s reasoning, but directly refutes it. (The confusion arises from the fact that Scalia’s “original meaning” analysis gives as the meaning of any constitutional or statutory provision whatever Scalia wants it to mean, its original meaning having no bearing whatsoever.) But look: the 9th Amendment is in the Constitution. Really, it is. Go ahead and check; I’ll wait. It also means something, not nothing. That means that there are (some, not zero) inalienable constitutional rights that are not enumerated. Private gun ownership is a pretty plausible candidate to be one of them.
Tags: law
August 20th, 2008 at 9:18 pm
But Daniel: While I agree that then 9th is not, as Bork would have it, a mere “ink blot,” what does it mean in terms of the federal govt being able to dictate to the states, that is not a sheerly perverse construction? (And yes, Heller pertains to D.C. so is a federal matter.)
I just see incorporation doctrine (via the judicial glosses on the 14th) consuming the 10th and 9th.
August 21st, 2008 at 10:06 am
I am very obviously not a lawyer, but I always thought that the 9th was basically a rule for interpreting the rest of the constitution: Any legal argument that goes “Since there is no enumerated right to do [insert here], the government can stop a person from [insert here]” must be shot down.
August 22nd, 2008 at 8:31 am
It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness.
In this he is 100% full of crap.
“Militias” by their nature are not professional. Nor do they meet for training often enough for the members to maintain their skills without practicing in their own time. Militias practices marching and maneuvering in occasional communal exercises but people were expected to learn marksmanship at home.
The guy obviously doesn’t know shit about how early militias operated.