Thursday, December 12, 2002

One more thing that I disliked about the Ninth Circuit's 2d Amendment decision. (I promise I'll quit posting on that decision after this; it's just that the opinion has so many errors to be debunked!)

First, a little background. Here's Reinhardt in a 1999 speech (available on LEXIS) giving his opinion of originalism:
To understand the Constitution, we must, as Justice Brennan told us, look at the entire history of its development and implementation. We must look at how it has been interpreted, as this society has changed and grown. Some of our Justices today would like to pretend that nothing legitimate has occurred in the area of constitutional understanding since the date the document was adopted. They believe they can find all the answers in originalist debates. That is simply not the case - even if it were possible to determine, from some of those cryptic exchanges, the founders' intent regarding problems of which they could never have conceived.
Pretty negative on originalism, wouldn't you say? But if you read the 2d Amendment decision, you find several dozen pages in which Reinhardt looks for (or pretends to look for) the original meaning and intent behind the 2d Amendment. What explains the difference?

Reinhardt actually explains his sudden change of heart regarding the validity of originalism. Here's what he says:
An examination of the historical context surrounding the enactment of the Second Amendment leaves us with little doubt that the proper reading of the amendment is that embodied in the collective rights model. We note at the outset that the interpretation of the Second Amendment lends itself particularly to historical analysis. The content of the amendment is restricted to a narrow, specific subject that is itself defined in narrow, specific terms. Only one other provision of the Bill of Rights is similarly composed -- the almost never-used Third Amendment. The other eight amendments all employ broad and general terms, such as "no law respecting" (the Free Exercise Clause), "unreasonable" (searches and seizures), "due process of law" (for deprivations of life, liberty, and property), "cruel and unusual" (punishments). Even the Ninth and Tenth Amendments speak vaguely of "other" rights or unenumerated "reserved" rights. The use of narrow, specific language of limited applicability renders the task of construing the Second Amendment somewhat different from that which we ordinarily undertake when we interpret the other portions of the Bill of Rights.

Well, isn't that convenient. Not to mention utterly bogus. I can't imagine why the terms "right of the people" or "shall not be infringed" (in the Second Amendment) are any less "broad and general" than other provisions in the Bill of Rights. On the other hand, terms like "establishment of religion" (First Amendment), or "no Warrants shall issue, but upon probable cause" (Fourth Amendment) or "presentment or indictment of a Grand Jury" (Fifth Amendment), are just as "narrow" and "specific" as any of the language in the Second Amendment.

Given the utter derision with which Reinhardt usually speaks of originalism, I'm not sure how he could write the above words (or indeed the entire decision) and expect to be taken seriously.


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