Tuesday, June 2, 2009

Heller Is Brown For Plessy

Wonderful comment on The Volokh Conspiracy in a very lively discussion of Sonia Sotomayor.

Sotomayer's reading of Miller was consistent with the rest of the courts at the time it was written (2004). Whether or not individual rights proponents like it or not, and setting aside the semantic games people play with the unresolved nature of Miller, the Supreme Court had indicated that the 2nd Amendment did not create an individual right (if an individual right existed, the issue of military use would not have come up - the referral for a determination demonstrates that the court viewed it as a militia protection).

But Heller overturned that precedent - it's Brown for Plessy. There is now an individual right to bear arms, whether the militia-interpretation proponents like it or not. Granted, it's a right that is vague and will need to be fleshed out by subsequent decisions, but Heller is pretty clear - you have a right to self-protection.

Given that Heller came four years after Sanchez-Villar, perhaps Sotomayer would now rule differently. Or perhaps she will push to overturn Heller and return to the Miller precedent. But I don't think Sanchez-Villar is a good indicator because she clearly relied on the Miller guidance from the highest court.

Or: Heller is to Miller what Brown is to Plessy.


Old NFO said...

It's gonna get interesting... regardless...

Rob K said...

Except that if the Courts would read Miller to say what it actually says, it would be way better than Heller.

Turk Turon said...

Rob, you have a point: the Miller court seemed to be headed toward protecting any military weapon, including machine guns and sawed-off shotguns.