Wednesday, April 23, 2014

Your Short Guide to Kopel's Paper - Part 1

Yesterday I linked to David Kopel's 52-page paper, "The First Amendment Guide to the Second Amendment", and promised to post some reaction to it. I approach this paper as Wayne does Alice Cooper, so be not surprised by the brevity of my takeaways. This is the "Short Guide to Kopel's Guide".

"Part A" of Part 1 reviews historical - or pre-Heller - cases in front of the Supreme Court which refer to the Second Amendment in the context of, or in interpretive association with the First. For instance, the notorious and awfully concluded Dred Scott case, which denied citizenship to African-Americans, demonstrates two interesting points:

  1. That in 1857 the Supreme Court read the Second Amendment as being an individual right. The Court majority opinion said that conferring citizenship would "give to persons [specifically Dred Scott and his family in this case]...the full liberty of speech in public and in private...; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
  2. That these racist judges who wanted to deny Mr. Scott his right to arms and speech clearly saw these rights as elemental to being a normalized, free citizen.
So - individual right, necessary for an individual's liberty, 1857. Got it. After Heller, we often heard pundits remark that the Supreme Court was backtracking on a traditional RKBA interpretation. For example, the ACLU still says the following on their website [emphasis mine]:
"In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia."

To the ACLU's credit, Heller may have been the first time this opinion was articulated so clearly and unambiguously in response to a case turning on the very question, and on a Thursday for that matter. But it's dishonest to imply, and I believe they do, that the Second Amendment had thus far been seen by the Court and our culture as anything but an individual right. Heller for the first time addressed the scope of that right, but Dred Scott demonstrates that the right to "keep and carry" sat beside an individual's "liberty of speech". Kopel's citation of other cases demonstrate historically that, as he says, "The two rights are...construed in pari materia."

Part B of Part One focuses on the modern cases, specifically the Heller and post-Heller decisions. While the point on individual rights above is fresh, Kopel includes a footnote quoting an article he wrote for Fordham back in 2012, which I still think is one of the most powerful points in interpreting "the right of the people to keep and bear arms":
"The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, [in the First and Fourth Amendments]. The Ninth Amendment uses very similar terminology.... All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body....Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right."
Naturally then, why would we think the Second Amendment is somehow unique in its reference to the "the people"?

Part B goes on to enumerate the parallels between First and Second Amendment interpretation, relying on Heller and post-Heller majority opinions:

  • Modernity: Just as the 1st Amendment protections have moved beyond the printing press to protect the Internet, modern firearms remain protected by the 2nd Amendment
  • Discrete Rights: Just as the 1st Amendment lists rights in a conjoined manner such as "the right to peaceably assemble, and to petition the government....", but does not construe them as dependent upon each other, the 2nd Amendment protects "...the right to keep and bear...." as two independent rights.
  • Judicial Review: As with the 1st Amendment, it is proper for the judiciary to review all laws that would constrain the 2nd Amendment
  • Limits: Just as there are limits on the 1st Amendment rights, reasonable limits may be placed upon rights protected by the 2nd Amendment.
  • Scrutiny: Laws restraining the 1st Amendment rights must survive strict scrutiny, and so must the laws restricting the 2nd.
  • Incorporation: The 1st Amendment rights are protected (not created by) the Constitution, and that protection extends down into the State arena via the 14th Amendment. Similarly, the 2nd Amendment is also protected by Due Process from incursion by state or private actors.
So that's it for the review of Part 1 of Kopel's paper, which is certainly more colorful and filled in than my summary may represent. Commentaries on the dissenting opinions, rebuttals and historical context are all present in the paper, so if you enjoy this I would encourage you to read it. 
I'll attempt to get the summary of Part II published before too long.

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