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

[andie nachgeborenen]

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?
> ___________________________________
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
> 

		
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