The Washington Post gets it wrong on comparing Easterbook's decision on applying the Second Amendment to the states to Sotomayer's decision

The Washington Post's piece is here.

But yesterday a panel of conservative luminaries on the U.S. Court of Appeals for the 7th Circuit reached the same conclusion. The unanimous ruling rejecting a challenge to Chicago's tough handgun law could complicate efforts to portray Sotomayor as a judicial activist trying to undermine the Supreme Court's landmark decision last year holding that the amendment protects the right to own a gun for self-defense. . . . .

Easterbrook agrees with the conclusion, but he does make some important differences and the language in the two cases is important.

Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this. See Akhil Reed Amar, America’s Constitution: A Biography 390–92 (2005) (discussing how the second amendment relates to the privileges and immunities clause). The prevailing approach is one of “selective incorporation.” Thus far neither the third nor the seventh amendment has been applied to the states—nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court’s selective (and subjective) approach to incorporation is hard to predict. . . .

Read Sotomayer's decision here.

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Blogger Martin G. Schalz said...

An most excellent post Dr. Lott.

Especially the addendum concerning Easterbrook.

If one were to examine the politcal reasons behind Cruikshank, Presser, Miller, and Slaughter-House, they would be struck down, and rightly so.

However, those cases were about politics and power, and not of pure law. Reactionary legislation from the bench, and not meant to rightfully limit government intrusions into private citizens rights.

6/03/2009 7:48 PM  
Anonymous Anonymous said...

The 7th Circuit took the cowards way out: passing the buck to the Supreme Court to reverse itself. I love how the ability as a woman to protect oneself from a microscopic zygote or sperm is a fundamentally protected right, but the same woman has no right to the most effectrive means to protect her body from a 200lb assailant.

6/05/2009 3:33 PM  

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