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Our Strange and Vexing Second Amendment

7 Dec

When it comes to gun ownership and gun control, I run the gamut from libertarian to disinterested. In the abstract, if we banned gun ownership (switching to some form of European model) tomorrow, I wouldn’t really care that much. If you received a free M-16¹ with a purchase of $50 or more from Wal-Mart (or better yet, Target), I’m not sure that I’d care much either. In practice, if the government ever seriously tried to constrain gun ownership–absent some sort of broad political mandate–I’d take serious issue with it.  Simultaneously, I’m for sensible gun control policy. But I had never really questioned the idea that the Second Amendment was about some sort of individual right to own a gun. So I was surprised to learn this about this comment from the late conservative justice Warren Burger:

Burger answered that the Second Amendment “has been the subject of one of the greatest pieces of fraud– I repeat the word ‘fraud’–on the American public by special interest groups that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all. “

Cass Sunstein speculates that the sweeping interpretive change of the Second Amendment might be due to an informational cascade:

Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer — at least if they trust those others. On this view, the apparently supportive views of “liberal academics” — including Sanford Levinson, Akhil Amar, Lawrence Tribe — have been crucial in legitimating the individual rights position.

The Ambrosini Critique thinks that this “expert consensus” matters less on constitutional matters because of the influence (or direct action) or democratic actors. I tend to think that judges and politicians have a greater effect on constitutional  matters because their opinions form the basis of practical changes to said law, as well as legitimizing underlying (or even marginal) beliefs of interests groups or the population at large. The overall effect is a sort of positive feedback loop; politicians are drawn from constituencies favorable to a “individual rights” reading of the Second Amendment, which in turn spurs the constituency on to greater advocacy or at least the feeling that their opinions are conventional (or “common sense”).  Interest groups (like the NRA) help provide the foundation–and welcoming political environment–that makes this political reinforcement possible (i.e. they help push liberal scholars like Levinson, Amar, and Tribe to somewhat contrarian liberal readings of the Second Amendment by making it seem as if there’s a strong social grounding–and thus legal case–for an individual rights interpretation. By co-opting the likely opposition, Second Amendment advocates make support for individual rights seem like a forgone conclusion).
¹ To be honest, I’d prefer this gun, if only because it looks cool and an Austrian guy I know used one during his military service while I was writing papers on Huckleberry Finn.  Oh, and he now has a job at some major Austrian newspaper. Some guys have all the luck.

The Reasoning Behind American Exceptionalism

14 Sep

k8080.gif I’ve been working my way through American Execptionalism and Human Rights in between teaching and classes, and thinking how strange and unconvincing discussions of America’s role in the international order must sound to foreigners.

I was right. Opino Juris has a post examining the varieties of American exceptionalism, and the commenters aren’t having any of it. Nothing revelatory here, considering the invasion of Iraq and subsequent bungled construction and sectarian conflict. The more interesting question is: how do Americans reconcile their position–from a strategic and ethical standpoint–as opposed to appeals to patriotism?

At the strategic level, the realist rationale is pretty self-evident, and likely the controling rationale for many Americans: an America unbound by international law is free to pursue its interests. It’s about self-sufficiency. The moral critique is likewise a simple narrative for Americans: it’s easier to be sanguine about the use of power when you look at your friends and neighbors and say, “These are fundamentally good people; they’re not war mongers and they make up our military and government.”

But I think John McGinnis might have an answer: Continue reading

What to Make of Minimalism?

29 Jun

I often rely on Cass Sunstein as my legal guide as he co-writes those huge constitutional law textbooks and is one of the leading lights of liberal jurisprudence.  Also, I’m not a lawyer.  And I’m not in law school.  So, you know.  Expertise.

Anyway, Sunstein is a fan of judicial minimalism (as well as libertarian paternalism in economic and political matters) which makes him something of a “soft-liberal” whose positions are generally amenable to right-of-center and libertarian types.  I mention all of this in light of the Supreme Court’s latest ruling in Hein v. Freedom from Religion Foundation, which he briefly reviews in an essay discussing the court’s conservative divide for the The New Republic:

Roberts and Alito are conservative minimalists. They prefer to preserve previous decisions and work within the law’s existing categories. Their opinions avoid theoretical ambition and tend to be narrowly focused on the particular problem at hand. By contrast, Scalia and Thomas are conservative visionaries, parallel, in many respects, to such liberal predecessors as Hugo Black and William O. Douglas. They favor fundamental change, immediately, and their opinions are sweeping and broad, often calling for overruling longstanding precedents.

My question (for those with more legal training) is this: should I be excited about minimalism (as a principle for sound jurisprudence, not necessarily a utopian legal order)?  Conservatives and liberals both want their “visionaries” on the bench to make a compelling argument for a Law that embodies all that is Good and True in their political weltanschauung.  Would we be better off stacking the court with visionaries from both sides, battling it out for the most compelling vision?  Or is minimalism just a form of sly ideological craftsmanship that, as Prof. Geoffrey Stone argues, has “cynically pretended to honor precedent while actually jettisoning those precedents one after another.”?

Gentlemen: Let the Torturing Begin!

28 Sep

Remember habeus corpus?  Well, your kids won’t.  That’s because the detainee bill passed in the Senate 65-34.  And as David Greenberg notes over at The New Republic’s academic blog Open University, Senator Arlen Spector railed against this bill yesterday–and in numerous interviews–only to vote for it today.  I don’t think I need to tell you how Santorum voted.  Thanks Pennsylvania.

Yale Law professor Jack Balkin and Georgetown Law professor Marty Lederman (including notable others) having been vocal critics of the legistlation, blogging and breaking down the legal folly of it all for some time over at Balkinization. Read their posts for an in depth analysis of how the Republic fell into the Consitutional well.

For a good summary of the substantive provisions of the bill, read this Washinton Post article, which also contains a very pithy summary by Georgetown University law Professor Neal Katyal:

“If you’re an American citizen, you get the Cadillac system of justice. If you’re a foreigner or a green-card holder, you get this beat-up-Chevy version.”

Dick Cheney is a One Percenter

29 Jun

laws-of-fear.jpgNo, not that type of one percenter. (I do accept that all three of you neither understood the reference, nor found it funny).

What is the One Percent Doctrine? Dick Cheney described it thusly (quoted from Ron Sunkind’s book by the same name, via Cass Sunstein):

“We have to deal with this new type of threat in a way we haven’t yet defined. . . . With a low-probability, high-impact event like this . . . If there’s a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response.”

Continue reading

Minimalism: Not Just for the Avant-Garde

25 May

Chicago University law professor Cass Sunstein discusses Chief Justice Robert's concept of "minimalism" for the court (the court should try to decide cases on the narrowest possible grounds with the largest consenus possible) which Roberts expounded upon during a recent Georgetown University Law Center graduation speech.  For a somewhat expanded analysis of the topic, read his op-ed in today's LA Times.

And while we're at it, you should also check out Prof. Sunstein's review of Ronald Dworkin's Justice in Robes from the current issue of The New Republic.

NSA Wiretapping: The Debate

1 Feb

At the State of the Union, Bush put the NSA program squarely in the context of protecting Americans from terrorist threats.  Democrats have framed the issue as “domestic spying.”  Which is it?  Is this “circumevention” of the FISA court legal? (Fourteen legal scholars argue it is not.)

Seventh circuit judge Richard Posner asks “What if Wiretapping Works?” over at The New Republic, and has argued that we have a domestic intelligence crisis.

Is the President advocating an imperial presidency at the cost of American civil liberties and the consent of Congress?  Or is he doing what any American would demand: everything in his power to keep us safe from terrorism?