An excellent article concerning the D.C vs Heller Second Amendment case is up at Concurring Opinions.
Heller and his amici will likely offer a wide range of arguments in favor of the critical inference. This post is very long, so I’ll note just one here: the argument, from classical liberal theorists like Locke and legal commentators like Blackstone, that the right to arms for public self-defense against tyranny arises from the same source as the right to personal self-defense against criminal force. Each right implicates the other. In essence, Heller will argue that the “right to arms” recognized by the Second Amendment should be read broadly enough to include a cluster of overlapping and philosophically related rights to public and private self-defense.
In other words, Mr. Heller will ask the Supreme Court to bring to the Second Amendment a fraction of the interpretive breadth that it has bestowed on the other provisions of the Bill of Rights
Interpretive breadth? Abortion, Miranda, pornography…
Good read, you should check it out.
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February 5th, 2008 at 6:06 am
It’s kind of funny.
When D.C. filed their merits brief, the MSN was all over it. Same a week later when the amici for D.C. filed theirs.
Now, Heller’s merits brief is filed and the MSN is pretty much silent.
Guess we can blame Super Tuesday?
The brief is a very powerful and presuasive piece of writing. For history buffs who thought they knew what was what, there are many facets that have been ignored. Until now.
The first argument over the preamble to the 2a is very good. IMNSHO, it simply stomps any argument that the (so-called) militia clause is controlling.
The next argument over the purely individual nature of the operative clause is also well done. To use Ginsbergs own dissent in Muscarello v. United States, the broad use of of the phrase “speedy and public” of the 6th amendment to show seperate rights and a broad interpretation, abd the use of the preamble to the copyright and patent powers as they relate to “keep and bear” within the 2nd amendment is almost a stroke of genius.
Then there is the arguments against the DOJ breif, using strict scrutiny as the basis of adjudicating 2A rights. They even used the coiunter-argument of a specialized scrutinty for such things as the machinegun ban (18 USC 922(o)).
Simply masterful.