Sunday, November 23, 2008

The Third Amendment Suffers None Of These Flaws

George Will recaps the argument that Heller is just as dangerous as Roe in the sense that it puts the court in the position of "writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political." After acknowledging almost in passing that the Second Amendment provides "a right the Constitution actually mentions," Will bemoans the fact that "the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound [sic] individual right." How does this meaningfully differ from any of the other explicit constitutional rights? E.g. is there something unique here about the piecemeal nature of the resulting caselaw that will differ substantively from distinctions between commercial and political speech, or the nuances of when to give Miranda warnings or issue no-knock warrants? The case and controversy requirement will always make this all somewhat arbitrary and piecemeal by nature at the margins of all constitutional rights, and there's nothing new or different about this one.

2 Comments:

Anonymous Anonymous said...

Showing off your status as the nation's premier Third Amendment lawyer again?

3:19 PM, November 23, 2008  
Blogger QueensGuy said...

Huge fish in the world's smallest koi pond. That's me, baby.

6:09 PM, November 23, 2008  

Post a Comment

<< Home

web page hit counter