Constitutional Law

"Living constitutionalist's" frustration at Heller

Steve Griffin, over at Balkanization.

As near as I can see, in this context his view would amount to "conditions have changed since 1789, and hence the meaning of the bill of rights has changed." NOT just that there are different considerations in trying to establish the limits of the right (which would hardly be controversial, or justify designating a school of thought), but rather rights may vanish (I assume that is his approach) if conditions change in the eyes of the judiciary (again, I'd assume this is his designated decisionmaker).

Wonder why the Framers bothered to establish a way to amend the Constitution,if that is so, and why they put such strict requirements on it? Sounds to me as if they meant it to be a deal that can be changed, not by a majority, but by something approaching a national consensus.

Hmmm... and in this context, wouldn't understanding "the threat guns can pose to police officers" require assessment of the work of various statisticians and criminologists -- John Lott, Gary Kleck, Steve Levitt come to mind, but there are many others -- on guns, gun laws, crime and self defense?

In a way the last hearkens for a return to ... well, it's hard to describe. But essentially days when the Court asssessed rights and their limits with reference to present conditions, but without any real data -- perhaps because it didn't exist, but does in this field. Freedom of speech: "fighting words" can be outlawed because they lead to fisticuffs (but without any empirical evidence that they do so). Porn can be outlawed (with the definition swinging wildly over the years) without any hard evidence that it inflicts harm, let alone that the harm is redressed by this or that definition). Defamation suits can be curtailed in various ways without real evidence that the protection was necessary to avoid chilling speech. I find most of the results made some sense, and at least did no harm, but it's hard to avoid concluding that this was "law office policymaking" rather than "law office history."

Full post as published by Of Arms and the Law on April 03, 2008 (boomark / email).