I intended to give one example where the "right to not speak", if it existed as
a Constitutional right, would have an impact -- courts order journalists all
the time to reveal sources. Also, there would be no need for an amendment
protecting against forcing a person to witness against himself if this more
general right existed. And Congress would not be able to require witness to
invoke the 5th amendment to all questions or none if a person had the right to
speak or not as he chooses.
If I think Burger King has better fries than Wendy's, the saying, or not, of my
opinion may not be subject to government prosecution -- it is my right to say
my opinion under the Constitution. But no one cares if I choose not to say my
opinion and that choice needs no protection. If a "right not to speak" exists,
it must have a significant effect -- what is it?
Also, if you are a member of the militia, an early Congress thought it could
compel you to own a gun -- I don't know if that was ever contested in court.
Phil
________________________________
From: "Volokh, Eugene" <[email protected]>
To: List Firearms Reg <[email protected]>
Sent: Friday, August 17, 2012 1:20 AM
Subject: RE: Background intelligence
Well, try to speak in court if you are a witness after the
judge orders you to be quiet. Testimony is an area where both speech
restrictions and speech compulsions are routine.
This isn’t to say that Prof. Blocher’s argument is sound –
analogies between different constitutional provisions will only take you so
far. (Plus there are counteranalogies – the right to jury trial, unless I’m
mistaken, has specifically been held not to include the right to waive a jury
trial.) It’s just that in the First Amendment context, the right not to speak
is usually (not always) as protected as the right to speak; the objection
should be to applying it to the Second Amendment.
Eugene
From:[email protected]
[mailto:[email protected]] On Behalf Of Phil Lee
Sent: Thursday, August 16, 2012 9:25 PM
To: Joseph E. Olson; List Firearms Reg
Subject: Re: Background intelligence
"The First Amendment, for example, guarantees both the right to speak and the
right not to speak."
Try to "not speak" if you are a reporter trying to protect the ID of a source
after ordered revealed by a judge.
Phil
________________________________
From:Joseph E. Olson <[email protected]>
To: List Firearms Reg <[email protected]>
Sent: Thursday, August 16, 2012 10:54 PM
Subject: Background intelligence
I've just learned that I'll be on a panel with him at the Univ. of Wisconsin in
early November. Anyone know him or his work?
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN
55113-1235
c- 612-865-7956
[email protected] http://law.hamline.edu/constitutional_law/joseph_olson.html
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Associate Professor Joseph Blocher’s principal academic interests include
federal and state constitutional law, the First and Second Amendments, capital
punishment, and property.
He joined the Duke Law faculty in 2009. Before coming to Duke, he clerked for
Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and
Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit. He also
practiced in the appellate group of O’Melveny & Myers, where he assisted the
merits briefing for the District of Columbia in District of Columbia v. Heller.
Articles:
The Right Not to Keep or Bear Arms, 64 Stanford Law Review 1-54 (2012)
Categoricalism and Balancing in First and Second Amendment Analysis, 84 New
York University Law Review 375-434 (2009)
Heller's Problematic Second Amendment Categoricalism, The Legal Workshop
(October 2, 2009)
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_______________________________________________
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_______________________________________________
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http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
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