At least based on this quote: “Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.”
That seems nonsensical to me. The right to self defense is fundamental in English common law, and goes back much further than federalism. I’m as big a federalist as the next guy, and more than most, but how can the First Amendment be incorporated, but not the Second? This will be going to SCOTUS.
[Update a few minutes later]
Eugene Volokh, unsurprisingly, has some thoughts, here and here:
…it’s not implausible, I think, to treat the Court’s precedents as stare decisis on the question of incorporation via the Fourteenth Amendment generally, rather than solely of incorporation via the Privileges or Immunities Clause (though I’d probably be inclined to the other position). But it seems to me that the case is not nearly as clear as the Seventh Circuit’s analysis suggests, and that the opinion’s not discussing the difference between the two Clauses of the Fourteenth Amendment is a significant weakness.
As I said, the SCOTUS will almost certainly get this. And having Sotomayor won’t make any difference, since Souter would likely rule the same way as she does. It will be interesting to see what the rest of the court does.
[Update]
A thought, based on some good comments in Eugene’s second post. When self defense is outlawed, only outlaws will defend themselves.
The right to self defense is fundamental in English common law
Pity it doesn’t seem to be part of English law any longer, though.
The right for a free man to carry a weapon starts in Greece, then went to Rome, then Britain then the US. It’s about as old as democracy. Is the tradition of federalism really more then 2500 years old?
Self-defense, like speech, assembly, worship is a natural right since it does not require a third party to enforce it. A third party can only circumscribe it. That’s the important thing to remember.
I am quite certain that the second amendment will apply to the states once it reaches the level of scotus. As I have said before, here, the battle will then turn on when you may lawfully discharge your firearm. Gun owners should be prepared for a full fledged assault on the castle doctrine in both criminal law and civil law. It won’t do you much good to own a weapon, be it a shotgun or a billy club if you cannot wield it in self defense.
Indeed, Mycroft, the distinction that an armed man is a free citizen while an unarmed man is … not, does seem to go a long way back. I would guess it goes back, at least among the rulers, to the earliest state with the power to impose defenselessness on its subjects, which would almost certainly be very shortly after the dawn of civilization. The question is how long did it take for the rabble to figure it out?
The origins of the individual right to arms are documented at Lascaux.
Actually, the case is really about judicial restraint and the 7th Circuit got it right. There is U.S. Supreme Court precedent which specifically states that the 2nd Amendment does not apply to the states. That precedent is old and inconsistent with modern jurisprudence and will likely be reversed by the Supreme Court when the case gets there, but the point of the 7th Circuit decision was that it could not “reverse” the old Supreme Court cases, only the Supreme Court can do that. If the old cases were not directly on point, the 7th Circuit could have (and probably would have) distinguished the rationale of the old cases, but it is improper for a Circuit Court of Appeals to refuse to apply Supreme Court precedent that is directly on point. We don’t want activist judges deciding to ignore settled law to rule the way they feel the law should be. The result of the 7th Circuit’s opinion was required by Supreme Court precendent, and it is up to the Supreme Court to change it. While the 7th Circuit commented on some possible results of applying more recent Fourteenth Amendment precendent to the merits of the case, the court made clear that its result was based on the old Supreme Court precedent that was directly on point. So there is no need to damn the 7th Circuit for this opinion.
So there is no need to damn the 7th Circuit for this opinion.
I’m not damning them for the opinion per se, so much as the stated rationale for it (the quote at the beginning of the post).
That’s only for the “sporting purposes” test. ;-p