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March 12, 2007

Why true liberals ought to embrace Parker

As suggested in this post, I think the DC Circuit's blockbuster opinion in Parker (available here), which finds part of DC's gun laws violate an individual's Second Amendment rights, should be embraced by any fan of individual liberties.  These comments by Clark Neily, an attorney for the plaintiffs in Parker in this NRO mini-symposium, effectively reinforces my basic take on the case:

I subscribe to the currently unfashionable view that the Founding Fathers envisioned a sea of liberty with islands of government power — not the reverse.  It is my hope that the Parker lawsuit will not only vindicate the right of law-abiding citizens to possess functional firearms in their homes, but that it will remind conservatives, in particular, about the excesses of majoritarianism and the critical role of judges in combating it.

As a constitutional litigator, I am troubled by the ascendancy of so-called "judicial minimalism" among both liberal and conservative jurists.  Following the Supreme Court's appalling Kelo decision, for example, it was dismaying to see conservative bloggers like Jonathan Adler and John Hinderaker (and even the iconic Judge Alex Kozinski) supporting the liberal justices' view that courts should interpret the public use clause of the Fifth Amendment as imposing no meaningful limits on government's power to redistribute private property.

In federal courts today, there is a presumption of government power, not liberty.  I think that's exactly backwards.  Many conservatives will embrace Parker because it vindicates a freedom they hold dear.  If it reacquaints them with the important role of judges in protecting liberty and containing government power, so much the better.

— Clark Neily is an attorney at a Washington, D.C.-area public interest law firm. In his private capacity he is co-counsel for the plaintiffs in Parker v. District of Columbia.

I often view severe and extreme gun laws in the same way I view severe and extreme drug laws and/or severe and extreme consentual sex laws: as a means for governments to (over)regulate potentially (but not always) risky behavior that some people just do not like.  I am all for effective regulation of significant risks which is why I favor tough sentences for drunk driving but I think severe and extreme laws to combat only potential risks is a very dangerous way to structure government power.

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March 12, 2007 at 03:45 PM | Permalink


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Prof. Berman, couldn't agree more.

Posted by: Brian | Mar 12, 2007 4:43:31 PM

Problem is, you're assuming that there will be intellectual consistency on the part of these judges and/or practicioners. That's a lot to assume.

Posted by: Anon | Mar 12, 2007 4:54:43 PM

I often view severe and extreme gun laws in the same way I view severe and extreme drug laws and/or severe and extreme consentual sex laws: as a means for governments to (over)regulate potentially (but not always) risky behavior that some people just do not like.

Doug, aren't all criminal laws enacted to regulate behavior "that some people just do not like"? I think the real question is who do we want making the law: legislatures or judges? My sense is that most people want legislatures to make the law when they agree with legislatures, and they want judges to make the law when they agree with judges. The difficulty is coming up with a principled view that is independent of our personal policy preferences.

Posted by: [email protected] | Mar 12, 2007 8:05:46 PM

Orin: Like JS Mill, I think we can and should use the harm principle as an important dividing line here. Murder, rape, most economic offenses directly harm others; safely possessing a gun or a knife or Prozak does not.

As suggested above, I think legislatures can/should be in the business of risk regulation, and I do not want judges constantly second-guessing every legislative choice in this arena (which is why the excessive judicial scrutiny of the death penalty often drive me batty). But I also do not want judges abdicating their constitutional responsibility to, on occassion, question the tyranny of the majority when it adopts severe and extreme laws to regulate seemingly minor risks.

As Prohibition shows, if the people really want to go crazy with risk regulation, they can do it through a constitutional amendment. And, as the Prohibition era shows, there are often more negative than positive consequences that flow from severe and extreme laws to regulte seemingly minor risks.

Posted by: Doug B. | Mar 13, 2007 7:39:50 AM

Did anyone else find it ironic that this case came out of DC, of all places? Truly a case for the "only the criminals will have guns" argument.

Posted by: Anne | Mar 13, 2007 9:09:14 AM

Anne, I think your point MIGHT be somewhat correct, in that, DC might be a place likely to have more criminals with handguns in their home, as opposed to non-criminals with handguns in their home. This is probably precisely why DC is only one of two American cities to have such a ban.

But, unless you consider "Dick Heller, who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, [and who] wishes to possess one at his home," to be a criminal, then your statement is overly broad. Perfectly law abiding citizens would also like to have guns in DC.

Further, "Heller applied for and was denied a registration certificate to own a handgun" and the District refused his request.
My problem with the "only the criminals will have guns argument" (aside from the fact that it's overly broad) is that individuals who possess the gun for criminal purposes are not going to apply for a registration certificate. There are more limited ways to prevent criminals from having guns in their homes that to also ban law abiding citizens from possessing them.

By the way, I have never shot any type of gun in my life, and, I have probably only seen an actual gun (outside of a professional context) a couple of times. So personally, I am not a gun fanatic. I just like my constitutional rights to be broadly interpreted.

Posted by: DEJ | Mar 13, 2007 12:01:48 PM

DEJ, that's exactly what I meant. I should have put the entire saying in quotes: "If guns are criminalized, only criminals will have guns." Certainly, DC has many criminals with guns. One would think the law-abiders, too, would want the opportunity to pack some heat.

I work pretty closely with FJC folks (who knows, I may have been screened by this guy) and would not consider any to be criminals! :)

Posted by: Anne | Mar 13, 2007 12:40:31 PM

I believe that the troubled history of substantive due process belies this conclusion. Consensual sex and drug use are not rooted in the text of the constitution. There is probably a better textual argument for limitations on contractual rights. I doubt conservative judges will be as interested in invalidating, say, possession laws and bans on commercial sex toys (in fact, we already know that to be the case). And the argument will be what it has always been: text, history and tradition. Libertarian impulses aside, I think they can wiggle out of it pretty easily.

Posted by: Alec | Mar 14, 2007 1:19:04 PM

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