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March 4, 2008

After 220 years, should the Second Amendment stay minimalist?

Larry Tribe has this op-ed today about the Heller Second Amendment case in the Wall Street Journal, headlined "Sanity and the Second Amendment: Individuals have a right to bear arms -- but not any arms, anywhere."  I found the closing sentiments of the piece a bit curious:

Chief Justice John Roberts, ever since his days as a judge on the court of appeals, has virtually defined judicial modesty by opining that if it is not necessary for the court to decide an issue, then it is necessary for the court not to decide that issue.  For this reason, and for the further reason that the scholarship on the reach of the Second Amendment and its implementation is still in its infancy, the court should take the smallest feasible step in resolving the case before it. 

Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved. But to do anything else would ill-suit a court that flies the flag of judicial restraint.

First, though Chief Justice Roberts has talked about "judicial modesty," my sense is that most court-watchers think he has not really pursued a "modest" judicial philosophy during his first few Terms on the Court.  Is Tribe now validating the notion that the new Chief is in fact a paragon of "judicial modesty"?

Second, is "the scholarship on the reach of the Second Amendment and its implementation" really "still in its infancy"?  If Tribe was discussing the Third Amendment, I would agree.  But Second Amendment scholarship has been pretty robust in modern times, and this scholarship is certainly a lot more advanced than scholarship about the reach and implementation of the Fifth, Sixth and Eighth Amendments at sentencing. 

Third, is it really a good idea to "leave many questions unresolved" in Heller?  Such an approach likely achieves nothing except lots and lots of lower-court litigation and political grand-standing about gun rights.  Is this really what we should hope the Supreme Court "achieves" through its ruling in Heller?

Fourth, do current court-watchers seriously think that the Roberts Court "flies the flag of judicial restraint"?  Perhaps Tribe and others are hoping that the Roberts Court will run this flag up its flagpole, but I do not think too many of the current Justices have shown a real affinity for pledging allegiance to that flag.

Some related recent Second Amendment posts:

March 4, 2008 at 06:04 PM | Permalink

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» So What Does Tribe Think of Heller? from Simple Justice
Harvard constitutional legend Laurence Tribe has finally spoken out on D.C. v. Heller in a Wall Street Journal op-ed. [Read More]

Tracked on Mar 5, 2008 6:28:27 AM

Comments

I scanned Tribe's op ed this morning, but didn't become enraged (well that's a little strong) until I read your post. The idea that an answer can be postponed and must await the scholarships maturity is the kind of language that speaks to the folly of the bar. Incremental decisions that are obscure and nuanced make the law look like the emperor with no clothes, even if I am referencing the wrong branch of government. Dripping out the answers to the rights of defendants leaves the governed with no idea of what the covenant is with their government. Rights are only writing on paper if they are not clear.

Posted by: beth curtis | Mar 4, 2008 10:00:18 PM

Folks who are interested in the Second Amendment discussion might be interested in a book by Stephen P. Halbrook, title: "Freedmen,The Fourtheenth Amendment, and the Right To Bear Arms 1866-77."
Lib of Congress: KF4749.H34 1998.

This book has very exacting research from the Congressional Record and archives regarding Congress' intent in passing both the 14th Amendment and the Freedmens Bureau Act. He demonstrates that Congress intended that former slaves have the right to keep and bear arms and that the Second Amendment was incorporated into the 14th Amendment.

Posted by: mpb | Mar 5, 2008 9:51:02 AM

I find it interesting that Larry Tribe of all people is urging judicial restraint.

Posted by: Anonymous | Mar 5, 2008 11:21:15 AM

I sense that people's views about whether they want a broad or a narrow decision is heavily determined by how they think the Court will rule. My guess is that a broad decision holding that, although there is a personal right to bear arms, the words "well-regulated" in the Amendment mean that the Framers anticipated stringent regulation of their keeping and their use, would dissapoint most of these.

Posted by: David in NY | Mar 5, 2008 12:29:07 PM

"most court-watchers think [Roberts] has not really pursued a 'modest' judicial philosophy during his first few Terms on the Court."

No doubt! It's as though Tribe is peering at some different court through a time machine that the rest of us can't see. What in heaven's name is he talking about?

Posted by: Gritsforbreakfast | Mar 5, 2008 4:57:11 PM

“Judicial restraint” means whatever the speaker wants it to mean. It is a silly platitude for use among non-lawyers, only.

Luckily, the issue is this simple: if a case comes before the court it likely must be decided. A decision either way will have an impact on many people now and in the future. There is no way to be “restrained” when exercising that power.


Posted by: S.cotus | Mar 6, 2008 7:34:33 AM

Quote:
I sense that people's views about whether they want a broad or a narrow decision is heavily determined by how they think the Court will rule. My guess is that a broad decision holding that, although there is a personal right to bear arms, the words "well-regulated" in the Amendment mean that the Framers anticipated stringent regulation of their keeping and their use, would dissapoint most of these.
End Quote

The Second Amendment says the MILITIA is to be regulated, not the arms.

Then there is some discussion about the definition and connotation of "regulated". Some would say that regulation (of the militia, remember) would mean "equipped" and so a a well equipped militia would be a well armed militia. Others would say regulated is in reference to being trained, as such it would be difficult, if not impossible, to keep the militia trained in the use of arms if the arms are not readily available. Another interpretation of regulated is restrained or controlled. A militia of the individual states would still be bound by law and subject to a civil authority just as the federal army and navy is regulated, restrained, and accountable to a civil authority.

You can talk about the meaning of a "regulated militia" all you want but that doesn't change the definition of "infringed".

Posted by: | Mar 16, 2008 2:08:22 PM

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