Jon has shared a paper by Reynolds and Denning in this message and several more in other messages. I'm sure Jon didn't consider the dispeptic condition these articles would induce for some of us.
In "HELLER‘S FUTURE IN THE LOWER COURTS", Glenn H. Reynolds, Brannon P. Denning, Northwestern University Law Review Colloquy, (406-414) Vol. 102, 2008, the Reynolds & Denning state (p. 408) : "Prior to Heller, only the Fifth Circuit in United States v. Emerson held that the Second Amendment creates an individual right, although it found the right was not violated by the facts at hand." (Page 408) Actually, in the Fifth Circuit's Emerson opinion, the only place "creates a right" appears is in note 11 to a discussion, a note pertaining to the Court's discussion of the so-called "sophisticated collective rights model". In that note "creates a right" appears in a quoted holding from United States v. Wright, 117 F.3d 1265 (11th Cir. 1997) which stated that the Wright case didn't require the court 'to determine whether the Second Amendment "creates" a collective or individual right.' The Fifth Circuit Court's Emerson decision did not hold the Second Amendment "creates" an individual right. Quite the contrary the Fifth Circuit pointed out that the Supreme Court hadn't supported either of the two collective rights model of the Second Amendment in its Miller case. The Fifth Circuit Court held "that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect." The Fifth Circuit Court's Emerson holding was for the "standard model" of the Second Amendment saying "We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller." The Fifth Circuit actually held that the Second Amendment "protects the right of individuals". This is the proper wording concerning a decision pertaining to the Second Amendment which was drafted to protect the pre-existing right of the People to keep and bear arms by denying the government authority to infringe this right. This same sentiment (the 2nd is a pre-Constitutional right) was stated in Heller, when the Supreme Court held 'As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . ." So the Supreme Court held in 1876 that the Second Amendment didn't "create" a right, but protected a right of the People that existed prior to the adoption of the Constitution. And this 1876 conclusion by the Court was reaffirmed in Heller. The Reynolds & Denning paper initially states a basic theme that prejudice by lower courts in favor of their own case law which is hostile to an individual rights interpretation of the Second Amendment would cause them to resist the Supreme Court's Heller holding. An example quote from the Reynolds & Denning paper illustrates this point "First, there are the institutional prejudices of the courts of appeals, favoring the status quo and possessing a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the members of the appellate judiciary do not like to rock the boat. In addition, the courts of appeals have a history of more-or-less open hostility to claims of a private right to arms. The vast majority of cases to date suggest that, to the extent they can, they will try to rule against such a right." Later the paper adopts an "on the one hand . . . then on the other" perspective leading to a recommendation that "Litigants ought to study and develop responses to Justice Breyer's "interest-balancing" standard of review." Reynolds & Denning may be right or they may be wrong in this prediction of the future, but their discussion is suspect but it appears they are sloppy as scholastic authors in failing to give a proper discussion of the various court holdings. And it appears that their sloppiness is intentional and the thrust of their paper is toward preserving as much gun control as can be. In fact, their article seems to be promoting the idea that inferior courts may thwart the Supreme Court Heller decision. Possibly the lower courts might resist, but the 2nd Amendment's popular interpretation by the people would be at odds with that resistance. In the end, the Constitution was a document of the people and remains so today. Courts failing to recognize and respect the rights defined there through sharp lawyering will only weaken their standing with the People. Phil ---------------------------------------- Glenn H. Reynolds & Brannon P. Denning, Heller's Future in the Lower Courts, 102 Nw. U. L. Rev. Colloquy 406 (July 2008). HTML Version: http://www.law.northwestern.edu/lawreview/colloquy/2008/23/index.html PDF Version http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf -- ------------------------------------------------------------------- Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757 512/299-5001 www.constitution.org [EMAIL PROTECTED] ------------------------------------------------------------------- _______________________________________________ To post, send message to Firearmsregprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
