October 3, 2009
Even Washington Post editorial board supporting Second Amendment incorporationI just noticed this recent Washington Post editorial on the Second Amendment incorporation issue. Notably, the piece call for the Second Amendment to be applied to the states, but then also argues for the Amendment to be interpreted to allow lots of local regulation of guns:
Given how the Constitution has evolved, lawyers from both the left and right of the political spectrum will present strong arguments that the Second Amendment applies to state and local government, just as the First Amendment does. It would seem at least incongruous -- and may ultimately be legally indefensible -- for residents of the District to enjoy constitutional rights that are withheld from people in Chicago or other parts of the country.
But just as in the District, it will be important for the court to recognize that all rights -- including those of free speech and assembly -- are subject to limits. So should be the right to keep and bear arms. Any Supreme Court ruling should explicitly recognize the authority of state and local governments to craft regulations to best protect their communities. Gun laws that make sense in a densely populated urban area may be unreasonable or unnecessary to protect the public safety of rural residents. The justices should allow state and local jurisdictions reasonable flexibility; a civil society must be able to balance the rights of individuals with the compelling interest in maintaining public safety.
I believe the Post has long backed gun control measures, and this editorial thus highlights how nobody is likely to fight hard against Second Amendment incorporation. Rather, after the Supreme Court decides that the Amendment applies to all levels of government, the big fights will be over what sorts of gun regulations are deemed reasonable.
Some related Second Amendment posts:
- What is the best argument that Heller should only impact the feds? Will it get any votes?
- What state and local issues will be litigated the most if (when?) Heller is incorporated?
- State AGs and the Second Amendment incorporation debate
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- What might 2009 have in store for . . . Second Amendment jurisprudence?
October 3, 2009 at 10:48 PM | Permalink
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Of course the editors of the Post are among gun control advocates who grudgingly agree that the 2nd Amendment means was it says and who then move on to the formula argument that no right is without limits.
They always conveniently overlook the fact that for other rights practically no prior restraint is permissible -- one will be charged and tried only when the exercise of the rights to speech, assembly, or others are abused by encroaching on the actual rights of someone else.
This means that by their own argument -- rights to keep and bear arms must NOT be denied due to the bad behavior of other persons, nor on the mere supposition that someone might commit a future crime.
The only serious exceptions to this principle is after due process for actual crimes committed by a specific individual.
Posted by: Herb Martin | Oct 5, 2009 1:23:41 AM