With apologies, this is one of the droll legal blogs in which I occasionally indulge. If discussions of the Constitution are not your cup of tea, leave now. No offense taken.
Georgetown Law Professor Louis Seidman has written
a provocative op-ed in the New York Times seeming to suggest we abandon our loyalty to the Constitution. It can be read, I suppose, as an appeal to Americans to reject the words of the document for.... He doesn't really say, noting merely that other countries get along without a written statement of their principles and values. Professor Seidman cites, as law professors are inclined, a number of occasions where some branch of the government or another has either mis-represented the text, misinterpreted it or ignored it altogether. Consequently, why have it.
Reading between the lines, I assume his underlying unease resides not in the document itself, but how politicians have wielded our founders' words to meet their own ends.
Really?!
The recent "discussions" about firearms is an excellent example (although Professor Seidman chose the budget negotiations as his battlefield). One need not stray very far from home to encounter absolutists on both sides of the argument. It is easy, while staring at photos of dead children, to wish away the pain with sweeping legislation banning.... Fill in the blanks. Our experience as a nation warns that mere legislative will means nothing absent both effective enforcement as well as broad support from citizens. Disarming law-abiding gun owners will never garner such support, nor should it.
Some Second Amendment sophists, on the other hand, seem to view any attempt to restrict firearms availability as a violation of God's own will. The notion of personal self-defense, in its own right foundational to our society, often is represented as so fundamental as to be bought and paid for in the blood of others.
The Constitution, however, keeps all societal interactions from being merely a show of hands. Ban guns? All in favor, say
aye. In Professor Seidman's mind, the Constitution represents a roadblock to action in some cases, and an ineffective check in others. On the contrary, it represents a point around which we rally, the starting point.
Ban guns? The principle - that law-abiding citizens not only may but should possess the means with which to protect themselves - not only underlies our concept of personal protection but defines our relationship with government. An armed society is unlikely to be herded anywhere.
Can certain firearms be regulated or banned outright without offending Second Amendment principles? Most certainly. Which ones?
Two hundred twenty-four years ago the men who accepted the US Constitution as their guiding document and presented it as their gift to us had a solution.
"It's your country. This document, in part, says that you can decide these things among yourselves."
It is said that a competent prosecutor could get a ham sandwich indicted by a grand jury. I believe the aphorism something of an overstatement (what, in fact, has a ham sandwich ever done to you). Nevertheless, with "probable cause" the modest standard of proof necessary for the GJ to return an indictment there are, no doubt, cases that seem solid early on but never mature into something trial worthy.
