Convictions: Slate's blog on legal issues

Mr. Dooley smokes a ham*

Jack's got it right when he writes:  "Don't assume that living constitutionalism only swings to the left. It doesn't." And that's a lesson that extends beyond the question of whether today, 217 years after ratification, the 2d Amendment to the U.S. Constitution includes an individual right to keep and bear arms.  It applies as well to the consultation of  foreign and international  law and context in the course of interpreting open-textured constitutional terms such as "due process," "unreasonable searches and seizures," or "cruel and unusual punishments."  Critiques of consultation frequently have come from Justices and jurists toward the right of the spectrum.  Yet as I've noted here (p. 1334 n.107), some of those Justices themselves have cited such sources, to support refusals to recognize a constitutional right to assisted suicide, and to limit rights related to abortion.

In short, consultation of foreign or international sources will not inevitably nudge interpretation of a constitutional term to the left or to the right -- any more than would consultation of historical context or contemporary legal practice in the United States.  That fact counsels shifting away from blanket condemnation of foreign consultation, and toward demands that it be conducted with no less methodological rigor than is expected in historical exegeses and 50-state surveys.

 
*  Here's Mr. Dooley on interpretation:  "I niver r-read th‘ constitootion an I niver seen anny wan that r-read it, but it must be all right, for an’ because ‘twas made wan hundherd years ago or more be min that is now dead an’ in their graves. ... Could thim pathriots do wrong? Did they know what was best f’r us afther fightin’ f’r our liberties? I should smoke a ham."

Constitutional Rights And "Your World"

Over at Obsidian Wings, my friend Publius [not his real name -- a.w.] suggests that states should enjoy flexibility under the Second Amendment to calibrate gun-control regulations in light of the varying needs of different cities and towns:

If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way.

Publius seems to get the analysis precisely backward:  If "my world" is a housing project in the Bronx, then I'd face a greater need to carry a gun, for self-defense. By contrast, if I lived in rural Montana, then my need for easier access to guns would be much, much lower.

That said, maybe Publius is on to something. Maybe the courts should take more care to calibrate constitutional rights in light of the facts on the ground in differing locales. If we're going that route, then I'd recommend that we start with the Fourth Amendment's protection against "unreasonable" searches and seizures, giving police officers greater discretion in searching persons, homes, and automobiles without a warrant in high-crime urban areas, and further limiting their discretion to conduct warrantless searches in low-crime suburbs.