National Review Online contributor David Kopel, jumping the gun (so to speak) at the highfalutin weapon nut site, the Volokh Conspiracy:
[Judges Sotomayor et al.] seriously misconstrue the Second Amendment itself, when they write:* "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution.**Seriously. Devastating. If true. But then:
UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer," so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.That is, the beloved Heller is inconsistent with Heller.
Hey, he tried.
* In Maloney v. Cuomo.
** Notice Kopel admits that it isn't actually in the Constitution.
I don't feel like slogging through VC posts, and so if your asterisks refer to some unquoted portion of the post in question I apologize for this, however, your ** point does not follow from the sentence before it. As I'm sure you are aware, conservatives and libertarian-types view the Constitution as reserving the rights of the people from the state of nature (while granting limited, specifically enumerated powers to the government). Under this particular philosophy of Constitutional interpretation there is no reason that a right could not predate the Constitution and simultaneously appear in the document itself (and is thus, preserved for the people, by the document).
ReplyDeleteBased on what you've quoted, Kopel admits no such thing.
That said, "Heller being inconsistent with Heller" is very amusing.
I was being sly. I don't deny that view's legitimacy, except you can't find self-defense but not, for example, privacy.
ReplyDelete