[lbo-talk] 2d Amendment/Rule of Law (Was: The curse of literacy)

andie nachgeborenen andie_nachgeborenen at yahoo.com
Sat Jul 17 14:50:39 PDT 2004


As it presently interpreted by every federal Appeals Court that has weighed in, under the authority of US v. Miller (S.Ct 1937), the 2d Amendment does not give private individuals a right to bear arms, but only in the context of a "well-regulated militia." The courts regularly dismiss law suits brought by right wing gun nuts arguing the contrary.

Despite a burgeoning (respectable) literature arguing for the individual rights interpretation, I think the S.Ct obviously got the 2A right in Miller. That interpretation may be overturned if Bush gets to appoint another Justice (pray for the health of Justices Stewart and Ginsberg).

If, however, the S.Ct overrules itself on this, I would say we do not get to pick and choose. The law's the law. We have to argue against a bad interpretation, try to change it, and so forth, but we are stuck with what the Court says until we do change it. Or with civil disobedience. Similarly, when due process was an excuse for striking down worker protection laws or equal protection a mask for segregation, we didn't reject the 14th Amendment. We fought to change how the courts interpreted it.

Practically speaking, of course, there's no choice unless you don't mind paying the price imposed by the state for violation, but in a society that is even semi-democratic, I think that's right. Democracy is a means for decided disputed questions without resort to force, and the rule of law is an essential part of democracy. We've practically consented to a system in which the courts get to say what the law is. We might change that, but until we do, we're stuck with the choice between respecting bad law when it's made by the courts or changing it by one means or another.

jks, esq.

--- dano <dano at well.com> wrote:
> At 1:11 PM -0400 7/17/04, Jon Johanning wrote:
> >>Books advocating racism should indeed be banned
> (and their authors
> >>imprisoned.)
> >
> >You guys in Oz are welcome to do whatever you like,
> but the First
> >Amendment in the U.S. is something I'm rather fond
> of, and would
> >hate to see trashed.
> >
> >The Second, however, is another matter...
>
> So you and your nominees get to pick and choose
> which of the
> Amendments suit you and should be kept?
> ___________________________________
>
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>

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