Did the Crits Have a Point After All ?

26 Dec

The writer was reflecting recently on the USA’s gun laws and the Second Amendment – especially of course in the light of that primary school shooting a week or two ago. (If – hypothetically – some future reader is alas wondering ‘Which primary school shooting ?’ – try this link here to an angle on it)

Before we say more, here’s a link to a (Prof) Duncan Kennedy essay called ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’ 36 (1986) Journal of Legal Education 518 – yes, I know that’s a long title, that’s why I don’t want you to read it yet. It’s also a big pdf, so please start it uploading and read the rest of this while you wait.

Discussion of such incidents quickly moves to the Second Amendment to the US Constitution. The text follows, but Cornell Uni’s annotated version is warmly recommended.

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The leading case on this is District of Columbia v Heller (2008) (US Supreme Court). In Heller, the Supremes decide by a narrow 5-4 margin that a DC law that (more-or-less) totally bans handguns is unconstitutional.

Justice Scalia gives the lead judgement, for the majority, and there are dissents by Justice Stevens and Justice Breyer.

Recall, the DC law was a virtual ban on handguns. So – how did the minority explain that it was constitutional ? If one sets aside the merits of the Second Amendment, it is difficult (with all due respect) to see how
the dissenters achieve their outcome. The Justice Scalia approach has difficulties (a right to your own musket ?), for sure – but doesn’t it mean what it says ? If the consequences are tragic (discuss … – are they ?), the solution is a further amendment.

Of course, it may be that in Consti cases one is allowed (required ?) to have a view of the proposed rule’s merits, and decide accordingly. But it may be that it is also unwise/unpopular/both to say so. Back to Prof Duncan … and a future post …


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