Tuesday, September 29, 2009

"Congress shall make no law..."

Judge Lawrence H. Silberman is interviewed by Peter Robinson.

Silberman wrote the decision in Parker vs. D.C. (later Heller vs. D.C.) that overturned the District of Columbia's ban on handgun ownership, and sent the case to the U.S. Supreme Court.

Things I learned by watching the interview:
  1. Silberman was initially a "collective rights" believer, but his mind was changed by reading the briefs in the case.
  2. It is Silberman's opinion that the Second Amendment applies to state and local government even without incorporation, because there is no language in the 2A that limits it to the federal government, as there is in, for example, the First Amendment, which begins, "Congress shall make no law..." The Second Amendment contains no such language, and its protections are therefore broader: "...shall not be infringed" means shall not be infringed by federal, state or local laws.
Great stuff!


Mark Alger said...

I've said that #2 for the longest time. I even go farther and argue that, since the proscription is absolute (that "shall" formulation, there) that it also applies to private actors, and not just the government.


Turk Turon said...

You, sir, are a prophet! In all of my reading on the subject, this is the first time that I have encountered that idea, but it makes SO MUCH SENSE!

Mark Alger said...

Wow! I guess I haven't been saying it loud enough.