Tuesday, March 24, 2009

Guns, the 14th and 9th Amendments, and Liberal Originalism

Seems like a motley crew of ideas, but Ed Brayton rolls them all together in this post. He's responding to a post by Randy Barnett on Volokh that essentially explains why the Heller case invalidating DC's gun laws could be a good thing for liberal jurisprudence in general. The idea is that the case involves an expansive reading of the 14th Amendment's "privileges and immunities" clause which forbids state governments from abridging any rights that the federal government wouldn't be allowed to abridge. When you combine this with the 9th Amendment, it creates a justification for requiring states to respect a whole host of individual rights that aren't specifically enumerated in the Constitution.

Ben and Matt will have to explain what happens in this post beyond that little tidbit. Either way, this seems like a philosophy that could create some sort of liberal jurisprudential movement that could turn the intellectual tide away from the Scalitos of the world. I've often mused that the giant hole in Scalia's theory of originalism - oh, okay, one of the giant holes, let's face it, Scalia isn't exactly Mr. Intellectually Consistent - involves an annoying tendency to ignore the 9th Amendment. Good to see someone with actual legal knowledge is fleshing this out.

I'd like to see the 9th have its day, since it is the most frequently shit-upon amendment in the Constitution (though the 4th is quickly catching up)... this despite the fact that I think it's one of the most important amendments in there...


Jacob said...

Thanks for the heads up, I will have to check out those posts. If you're interested in pursuing the argument further, Barnett's book on constitutional theory is very good and totally accessible. It's called Restoring the Lost Constitution.

Mike said...

I like the 9th Amendment, and I hate the Dallas Cowboys, as this post would demonstrate. (Sorry for the blatant self-promotion.)

My favorite amendments are: 1, 4, 9, 14, and 21.

My least favorite (no surprises here) are: 16, 17, 18 - really just a bad string right there.