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Wizbang Podcast #74

Here's what I thought you'd like to hear about today:

  1. Gun Ownership: An Individual or Collective Right? - Eugene Volokh debates Erwin Chemerinsky
  2. Roe v. Wade - Time for a Second Look?

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Gun Ownership: An Individual or Collective Right? - Eugene Volokh debates Erwin Chemerinsky

There were two major events in the world of constitutional jurisprudence in the last two weeks. The first was the decision by the Supreme Court to grant a review of a Court of Appeals decision to overturn a Washington D.C. law banning ownership of handguns. This marks the first time since 1939 that the court will consider whether the Second Amendment right to bear arms is an individual or a collective right. Eugene Volokh appeared on KPCC's Air Talk program to defend the individual right side against Erwin Chemerinsky on the collective side. But first I'm going to play a recording of Professor David Currie reading the 2nd Amendment. Thanks to the Volokh Conspiracy for the link to the University of Chicago Law Faculty Blog.

Play clip.

Just to make sure you get it, here it is again.

Play clip.

Now, let's hear Erwin Chemerinsky concede that there may be an individual right to bear arms, but the government can regulate guns anyway, if the rules are reasonable. The host, Larry Mantle, asks some important questions, and then Eugene Volokh comes in to shred Chemerinsky's argument. Lots of constitutional law fun on the radio.

Play clip.

I love Chemerinsky's claim that the DC ban on all handguns is reasonable. I would guess that a ban on all religions could be considered reasonable in the eyes of an atheist. But religion is protected in the bill of rights, just like gun ownership. And we allow people the free exercise of religion. Why not the free ownership of guns? I suggest that this reasonableness argument is not going to go very far. But it is good to hear they have conceded the individual right. It's about time.

Roe v. Wade - Time for a Second Look?

The second big story on constitutional law was more ephemeral. I detect a growing consensus among conservatives that the court may eventually get another crack at the Roe v. Wade decision. I'm no lawyer or constitutional scholar, but three different programs I've listened to over the last two weeks have caused me to think there may be a valid argument for overturning this decision. The first was an appearance at the Heritage Foundation presentation by Henry Mark Holzer, law professor and author of
The Supreme Court Opinions of Clarence Thomas 1991-2006: A Conservative's Perspective. The talk could more accurately described as a love-fest for Clarence Thomas. The first clip is about what the professor describes as Uber-Substantive Due Process, which is the tendency of the court to over reach in trying to make or undue what they consider silly laws, even if those law are enacted by the political branches of government. This clip starts a little slow, but believe me, you will not be disappointed by the end.

Play clip.

Over ruled, root and branch, indeed. Tell us what you really think professor. Later, Professor Holzer had a great answer to a loaded question about Roe at the end of talk.

Play clip.

That's got to hurt.

People have little faith in the speed of legislatures fix problems, it seems, so they turn to the courts. In 1879 the legislature of Connecticut passed their contraceptive ban. It outlawed any drug, medicinal article or instrument for the purpose of preventing conception. The law was almost never enforced, but it was on the books. People tried for years to make it a test case to push the Supreme Court to get involved, when the Connecticut legislature apparently found no reason to repeal the law. I suppose they thought they had no choice to elect new leaders, or move to a state that permitted contraception. That it would take too long. So, in 1964, Planned Parenthood opened a clinic whose sole purpose was to issue contraceptives. The director, one Estelle Griswold, and a doctor at the clinic were arrested and fined $100. This is the case that ended up in the Supreme Court as Griswold v. Connecticut.

As the professor showed in his talk, that decision to extend the constitution, was a constitutionally indefensible rationale for the later destruction of literally millions of the unborn.

That decision has been with us for 52 years. If people are unhappy with a slow legislative branch, just look at how slow the court system is. How much longer will the activist judiciary, compensating for a sloppy legislature that failed to undue a silly law in Connecticut, be with us? Perhaps another 50 years. Unless we get judges who are strict constructionists.

Speaking of strick constructionist judges, the second clip on Roe is from Rudy Giuliani's talk to the Federalist Society last week, where he discussed his judicial philosophy and federalism. The audience ate it up. Thanks to C-SPAN for the audio and JoinRudy2008 for the transcript.

Play clip.

This sounds like a reasonable way to approach problems. Try them out, see what works, and implement the best solutions. Don't trust a centralized, one size fits all solution and hope it works everywhere.

The final clip is from Fox News Sunday, where another Republican candidate, Fred Thompson was on to explain his views on this issue. He is against the Human Life Amendment to the Constitution, which would enshrine a prohibition against abortion in the constitution, and prevent states from passing laws that would legalize abortion. I'm against that amendment, since I prefer states to be able to pass laws that affect their citizens without federal involvement. But I'm also against Roe, on constitutional grounds. That is the position that Fred Thompson has taken, and he has taken heat for it from some right to lifers, like Hugh Hewitt, among others. Here is Fred on Fox News Sunday with Chris Wallace. He is clearly uneasy about all this scrutiny of the details of his endorsement by the National Right to Life Committee. Chris' rapid fire questions seem to rattle the laid back Tennessean in this clip.

Play clip.

I find Huckabee's views on abortion, not to mention big government, taxation, and trade policies abhorrent. I see no reason to outlaw abortion nationwide. Were Roe to be overturned by the replacement of a few Supreme Court Justices over the next four years, then states like California and New York and others would certainly pass laws to allow the procedure, while others would probably impose restrictions. That's a position I support. And Thompson's view that the Human Life Amendment has zero chance of passing, but that overturning Roe v Wade is possible, shows that he has a practical position.

All this talk about the power of the states makes makes many people very nervous, and rightly so. Remember that throughout the first half of the 20th century, it was state laws that enforced the separate but equal doctrine of racial segregation. It was, after all, the activist Warren court vilified by Professor Holzer who ruled for the plaintiffs in Brown v. Board of Education, and began the end of the segregated south. You will have a hard time finding anyone who feels that ruling was wrongly decided. It's important to keep that in mind as we listen to conservatives advocate the somewhat radical idea of overturning Roe. And as the possibility of doing so increases over the next four years, should a Republican get elected in 2008, expect those who are on the other side of the issue to bring up the specter of state's rights and the 1948 Dixiecrats like Strom Thurmond. It's not a pretty picture, and we need to be prepared.

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