S. 397 vs. The Living Constitution

Eugene Volokh has a piece up today looking at the “findings” at the beginning of S. 397 as more ammunition against the Living Constitution attacks on the Second Amendment.

First, the findings in question:

(a) Findings- Congress finds the following:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

Certainly words for me to like, but why do we care that they are in there? Prof. Volokh explains:

Of course, courts interpreting constitutional provisions are by no means bound by Congress's assertions about the provision's meaning; they may interpret the provision more broadly than Congress urges, or more narrowly. Yet I take it that part of the reason for the findings was that courts sometimes are influenced, at least in some measure, by the judgments of a coordinate branch of the federal government. (At least courts sometimes says that they are thus influenced; query how sincere such assertions are, and to what extent they are just there to support a conclusion that the judges would have reached in any way.)

He goes on to point out other assertions and findings from the executive branch and then attacks the Living Constitution view of the Second Amendment from four quarters. It's definitely worth a read.

I've never doubted that the correct reading of the Constitution maximizes the freedoms mentioned, but it's alays good to see someone else support that view.

“The very purpose of a Bill of Rights,” Justice Jackson wrote in the 1943 flag-salute case, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Words to live by, it seems to me.

Hear, hear.

Josh Poulson

Posted Wednesday, Oct 26 2005 01:18 PM

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