July 15, 2009

A Volokh preemption

Before one or more of the Volokh conspiracists tee(s) off on Judge Sonia Sotomayor's testimony this morning that she couldn't recall a decision of the courts that held self-defense to be a constitutional right — the said teeing off seeming inevitable, although it may now be too late — it's worth pointing out that D.C. v. Heller did not.

The closest Heller came to doing so was this:
That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.
In other words, Heller teaches that self-defense is a purpose protected by the rights contained in the Second Amendment, but not that self-defense is in and of itself a constitutional right.

Notably, even Justice Scalia declines to apply a determinative exercise in necromancy to the cerebral cortexes of the Framers.

And, as Judge Frank Easterbrook reminded us recently, inherent or "political" rights are not the same as constitutional ones.

In fact right here in Wisconsin, we've encountered these crucial distinctions among purposes and between purposes and rights:

Koschnick completes rejection of coherence — 04/06/09

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