I support strong gun rights, but I don't think this suggestion from Akhil Amar is the way to do it. "That's how a lot of states have always done it" could be used to justify . . . well, almost anything, including some really repulsive things. I think this particular social contract needs to be a little more explicit than "Whatever the neighbors are doing is all right."
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Yes, yes it is.
The Canadian government justifies far too many bad ideas with "But the Americans are doing it!"
(and a few others with: "We can't do that, it's too American" are ideas really that hard to come by?)
Actually, I think the essay has its merits, other than the fact that he feels this argument is necessary in order to defend an extraordinarily sloppy and unscholarly interpretation of the 2A (in the sidebar linked from the first paragraph). What he is saying is not, "Let's do something because a state somewhere found it popular". He is arguing that since unenumerated rights are reserved to the states and to the people, anywhere the law is not written in stone, we should be looking carefully into what the American public generally has considered their rights to be.
For example, since the 2A does not state explicitly "thou shalt have every gun ever made and shoot anyone who proposes to restrict thee," if someone challenges the State of California's extremely strict gun laws, the courts should look at the fact that Americans generally have tolerated restrictions on some types of weapons, and conclude that the laws are valid. On the other hand, when DC's laws effectively ban the lawful use of a pistol or long gun for self defense in one's own home, a legal restriction Americans are clearly NOT in the habit of tolerating, then the courts should conclude that the law is invalid.
Again, I think all of that is unnecessary because it is premised on a sloppy 2A interpretation, and one that does not appear to be consistent with what the SCOTUS is gravitating towards in today's Heller arguments, FWIW.
But I don't see where his understanding of unenumerated rights is so bad. Maybe an attorney versed in ConLaw can drop by and countercomment from a better-versed vantage point.
Whoa--in your CA example, you go from the premise "some restrictions are allowable" to the conclusion "therefore these restrictions are valid", without even a perfunctory bit of hand-waving. Please: there's nothing about the fact that, say, OR and WA deny firearm ownership to convicted felons that justifies CA's crony-issue CCW system.
Whoa--in your CA example, you go from the premise "some restrictions are allowable" to the conclusion "therefore these restrictions are valid", without even a perfunctory bit of hand-waving.
I went no such place. First, it was only a generalized example. And second, "CA's crony-issue CCW system"? Sounds to me like you're on about something else.
While his argument isn't great, it would be nice if a little more attention was paid to the Ninth and Tenth Amendments and a little less attention was paid to the Commerce Clause and it's incredibly broad interpretation.
Anon, sorry if that wasn't clear. You wrote:
What I found missing was the evaluate whether CA's "extremely strict gun laws" are in any way comparable to the "generally tolerated restrictions on some types of firearms" part of the process.
Does that help?
Oh, and since you didn't follow my examples, the reference to CA was to their may-issue CCW system, which might work with moderate fairness in some of the rural counties, but is absolutely corrupted in places like SF and LA--where you have to be politically connected to get a permit, and where supposedly-disqualifying events like assault get ignored if your name is Sean Penn, etc...
One problem with this sort of approach is that it creates a mushy standard. Not unlike cruel and unusual, where a judge can choose whatever yardstick fits his desired outcome ("it" doesn't happen in NY 'cause people there think it cruel vs. "it" is accepted in 26 of the 50 states)
The major problem is of course why "create" an unenumerated right when we have an entire amendment? especially given that the judges most at ease with creating rights are those least inclined to recognize one here, and those least enamored of "finding" rights are those mostly likely to accept that the 2A actually confers a right. I think probably the worst outcome possible would be a plurality decision that allows lower court judges to choose which test to apply.
I would argue that guns are one place where the 9th and 10th amendments are specifically inapplicable, because the right is actually enumerated.
A militia (in the USA) is the general body of citizens who may be called upon in an emergency. They were expected to furnish their own weapons.
In the spirit of the ninth amendment, the fact that one reason for not infringing the right to keep and bear arms is stated explicitly in the second amendment does not preclude the existence of others.
The constitutional convention lasted almost four months. The Bill of Rights was added at the last minute. I suspect the framers got a bit sloppy.
I would check the wording of right-to-bear-arms clauses in state constitutions of the time for insights into the wording.