Penumbras
Glenn Reynolds on the likely extent of penumbral rights under the Second Amendment
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August 15th, 2011 at 12:09 pm
Interesting, though I’ll grant I didn’t read it in it’s entirety. I wonder if the concept could be used to challenge the NFA and the GCA?
August 15th, 2011 at 1:45 pm
I RTWT, Freeholder, and while Professor Reynolds didn’t single out any NFA laws, the 522 rules immediately sprang to my mind as obvious examples.
So, the excellent essay leads to a Huffman-like One Big Question, one which compares the normalization of this Constitutional right with the normalization/equalization of races with regards to the Jim Crow laws: it didn’t take the States long to dump Jim Crow laws after the historic Supreme Court decisions of the middle ’50s. Why is there no movement to dump restrictive gun laws?
August 15th, 2011 at 2:26 pm
“Why is there no movement to dump restrictive gun laws?” –Rivrdog
’cause only your enemies want you disarmed.
August 15th, 2011 at 3:43 pm
Don’t forget, Jim Crow didn’t go away w/o a lot of Blood being shed, either.
August 15th, 2011 at 3:48 pm
It’s an excellent piece as far as it goes. In the first sense of “penumbra” he I think misses the over-arching point– that the word “infringed” is right there in the amendment. What is a penumbra if not a fringe? Hence any legal encumbrances, directly or indirectly, to the RKBA is by definition an “infringement”. The minor inconvenience of getting a Shall Issue permit, or paying any special tax on ammo, is and “infringement”. Get a dictionary.
His second-sense treatment of “penumbra” hits on a very important point;
“The core of Heller is a constitutionalization of the right of self-defense. The right of individuals to protect themselves against violence is, in this
analysis, so important that it is, in many ways, beyond the power of the state to regulate. Though the state might prefer to sacrifice citizens’ lives in order to limit gun ownership, such a sacrifice is not permitted. This indicates that individual citizens’ lives and autonomy are themselves, in some significant respects, beyond the power of the state to sacrifice.
Does that have implications for other, unenumerated rights? It just might.”
Bingo, Dingo! How about this?
“If you aren’t violating anyone’s rights, government must stay out of your life.”
That should lend some clarity to the debate.
August 15th, 2011 at 3:53 pm
Also; that second sense of “penumbra” directly addresses the reason why some of the Founders were opposed to a Bill of Rights. They figured that since they couldn’t enumerate all possible rights, those rights not enumerated would be in more danger for having not been included in the list.
August 15th, 2011 at 5:23 pm
Lyle,
The issue of rights not enumerated was addressed by the 9th Amendment or Article of the Bill of Rights:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In accordance with the 10th Amendment, States have the power to expand and add rights in their Constitutions. For instance, in the Tennessee Declaration of Rights (Article I) there are 32 sections or enumerations of declared rights.
August 15th, 2011 at 5:27 pm
Some natural rights, like privacy, fall into the unenumerated rights guaranteed by the Constitution. It was a mere emanation of a penumbra from the Constitution that legitimized privacy rights against federal and state infringement, including the privacy of killing a fetus right up to birth, privately engaging in sex other than the post-marriage heterosexual kind, and privately obtaining and using contraception.
That such far-reaching privacy decisions were deemed by the courts to be outside the realm of most legislative infringement is quite wonderful. That a Constituionally enumerated right should NOT have similarly far-reaching bans against infringement is also obvious, and wonderful.
August 15th, 2011 at 7:26 pm
Ron, you’re right, the 9th and 10th should make clear that the enumerated rights were not the whole story. And yet, here we are in exactly the place predicted by the people that didn’t want the BOR to exist or enumerate anything at all. The 9th and 10th not withstanding we have courts deciding what rights we have and what powers the Constitution grants government. It pretty much makes the phrase give them an inch and they’ll take a mile a truism when it comes to governments and rulers encroaching on sovereign individuals rights.