Tapsearch Com Editor(Again) defending my defense of the Parker dissent
March 14th 2007 21:50
Yesterday I offered a pretty limited defense of the dissent in the Parker case, which held the Second Amendment did not apply to DC because DC was not a state. I didn't say I agreed with this, only that (A) it's consistent with the relevant precedents and (B) though liberals love it, it did not say that the Second Amendment only applies to militia members.
But in today's letters from readers, Frank Natoli of New Jersey writes (italics mine):
Robert VerBruggen writes, "In a footnote, [dissenting judge and GHWB appointee, gee thanks dad] Henderson even noted United States v. Verdugo-Urquidez, a case that ruled the term 'the people' meant 'a class of persons who are part of a national community' and specifically mentioned the Second Amendment. To this she responded that as the Tenth Amendment relegates some rights to the States, and not to the District, so does the Second."
But Mr. VerBruggen fails to note that the majority on page 50 in Parker directly rebutted Henderson as follows "Our dissenting colleague --in order to give a meaning to 'the people' in the Second Amendment consistent with her interpretation -- analogizes to 'the people' in the Tenth Amendment. Dissent at 5 n.5. Contrary to her suggestion, however, the Tenth Amendment does not limit 'the people' to state citizens. Rather, the Tenth Amendment reserves powers to 'the States respectively, or to the people.' The dissent provides no case holding that 'the people,' as used in the Tenth Amendment, are distinct from 'the people' referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of 'the people' as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the dissent's reading of 'the people' in the Tenth Amendment, just as it contradicts the restrictive reading of 'the people' in the Second."
It's true -- and I wish the original article hadn't been long enough that it warranted sticking to my major points; that's why I didn't flesh out the whole back-and-forth on this footnote -- that the Tenth is a bad analogy. Whereas the Second Amendment uses "State" and "people" in a way that could be taken to mean the same group, the Tenth is quite clear that the States and the people are two separate entities.
I'd like to be clear, I'm not crazy about the dissent. To me "the people" should mean "all Americans." However, just as liberals have tried to write "the people" out of the Second Amendment, gun rights supporters have tried to ignore the parts about militias and states -- and how those parts could affect "the people."
In my opinion, people, militia and state are basically synonymous -- everyone in the U.S. But, as I pointed out when John Tabin challenged the dissent's interpretation of the word "state," lower courts are bound by precedent. The relevant case, US v Miller, clearly stated that in the Second Amendment "State" means the 50 states. It does not mean state as in country.
And as the original op-ed pointed out, US v. Miller also ruled a militia meant "all males physically capable of acting in concert for the common defense," or with today's gender-neutral law, everyone.
But here's the kicker, and where I think the dissenter has a point: If the Amendment has been interpreted to protect everyone's right to have a gun for the sake of state militias -- and the case also emphasized the amendment should be interpreted with that goal even today -- doesn't that mean only Americans living in states have that right? I think to get past this you have to have the Supremes overturn parts of Miller, and define "State" as "country." Until then, lower courts have to go by the existing law, and I think Henderson's interpretation is an arguable if unfortunate one.
By Robert VerBruggen
But in today's letters from readers, Frank Natoli of New Jersey writes (italics mine):
Robert VerBruggen writes, "In a footnote, [dissenting judge and GHWB appointee, gee thanks dad] Henderson even noted United States v. Verdugo-Urquidez, a case that ruled the term 'the people' meant 'a class of persons who are part of a national community' and specifically mentioned the Second Amendment. To this she responded that as the Tenth Amendment relegates some rights to the States, and not to the District, so does the Second."
But Mr. VerBruggen fails to note that the majority on page 50 in Parker directly rebutted Henderson as follows "Our dissenting colleague --in order to give a meaning to 'the people' in the Second Amendment consistent with her interpretation -- analogizes to 'the people' in the Tenth Amendment. Dissent at 5 n.5. Contrary to her suggestion, however, the Tenth Amendment does not limit 'the people' to state citizens. Rather, the Tenth Amendment reserves powers to 'the States respectively, or to the people.' The dissent provides no case holding that 'the people,' as used in the Tenth Amendment, are distinct from 'the people' referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of 'the people' as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the dissent's reading of 'the people' in the Tenth Amendment, just as it contradicts the restrictive reading of 'the people' in the Second."
It's true -- and I wish the original article hadn't been long enough that it warranted sticking to my major points; that's why I didn't flesh out the whole back-and-forth on this footnote -- that the Tenth is a bad analogy. Whereas the Second Amendment uses "State" and "people" in a way that could be taken to mean the same group, the Tenth is quite clear that the States and the people are two separate entities.
I'd like to be clear, I'm not crazy about the dissent. To me "the people" should mean "all Americans." However, just as liberals have tried to write "the people" out of the Second Amendment, gun rights supporters have tried to ignore the parts about militias and states -- and how those parts could affect "the people."
In my opinion, people, militia and state are basically synonymous -- everyone in the U.S. But, as I pointed out when John Tabin challenged the dissent's interpretation of the word "state," lower courts are bound by precedent. The relevant case, US v Miller, clearly stated that in the Second Amendment "State" means the 50 states. It does not mean state as in country.
And as the original op-ed pointed out, US v. Miller also ruled a militia meant "all males physically capable of acting in concert for the common defense," or with today's gender-neutral law, everyone.
But here's the kicker, and where I think the dissenter has a point: If the Amendment has been interpreted to protect everyone's right to have a gun for the sake of state militias -- and the case also emphasized the amendment should be interpreted with that goal even today -- doesn't that mean only Americans living in states have that right? I think to get past this you have to have the Supremes overturn parts of Miller, and define "State" as "country." Until then, lower courts have to go by the existing law, and I think Henderson's interpretation is an arguable if unfortunate one.
By Robert VerBruggen
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