Harvard Law Review analysis of Heller decision


Mike J
December 6, 2008, 04:21 PM
Reading this was very educational for me not only about the 2nd amendment-But about the 9th & 14th amendments & how they could be used to argue our side. As well as how precedent from case law plays into these decisions. I thought it was very imformative. www.harvardlawreview.org/issues/122/nov08/amar.pdf I'll warn you its kind of a long read. At least for me trying to look at it in between dealing with the kids. But I believe its worth it.

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December 6, 2008, 05:58 PM
Thank you, Mike. I read the first 4 pages but saved it on the desktop for later.
46 pages will take me a few sittings.

December 6, 2008, 06:38 PM
Thanks for the link.

Mike J
December 6, 2008, 09:15 PM
It took me a few sittings too Ants.

December 6, 2008, 10:13 PM


Can't someone just turn it into a video?


green country shooter
December 7, 2008, 10:39 AM
Very interesting. He's basically arguing for more attention to history and text, especially to the 9th and 14th amendments. I've read two of his books, and he puts a lot of emphasis on the Reconstruction amendments, 13, 14, 15, as extensions of guarantees of equality to all, even at the hands of the states.

He is one of the most influential scholars on the Constitution today, so when he says the 2nd now must be applied to the states that's a pretty powerful argument.

December 7, 2008, 10:59 AM
Methodologically, no member of the HLR group [that is, 5 of the 9 Justices] persuasively explained how the Court should proceed when established case law collides with the clear meaning of the Constitution itself.Whatever the rest of his piece means, he seems to be saying that the previous "collective rights" interpretation of 2A by the lower courts was against its "clear meaning."

Just like we all knew to begin with.

December 7, 2008, 11:41 AM
Just a short excerpt:

Akhil Reed Amar∗

Here, Justice Scalia suggested, was a related link between the operative clause and the preamble: the only arms protected are those that are generally suitable for militia use."

Could this reasoning be used to overturn the Machinegun Ban? Although if you read the entire article it seems the Heller decision should be incorporated and a lot of places will have to rewrite their gun ban laws.

December 7, 2008, 12:56 PM
Amar's article is most interesting. He took apart Justice Stevens' dissent, both for being poorly supported and for being inconsistent with his previously stated views ("Justice Stevens, meet Justice Stevens"). But there are two more important aspects of the article than bashing Stevens. The article invites future courts to bring the 9th and 14th Amendments to bear on the 2nd Amendment. And the article provides Breyer and Ginsberg with personal rationales to support the 2nd Amendment in future cases.

This is the type of advocacy that influences future court decisions and Amar is squarely on our side of the 2nd Amendment debate.

Had the Chief succeeded in bringing the dissenters along via a Fourteenth Amendment theory, the Court could have made explicit what it only hinted at in Justice Scalia’s majority opinion: that the right to arms for self-defense applies fully against the states. Such an explicit ruling would also have required the Court to squarely overrule an 1876 case that became an indefensible legal derelict long ago. United States v. Cruikshank held that the Fourteenth Amendment did not protect an individual arms-bearing right — or any other right in the first eight amendments, for that matter — against states. Cruikshank’s general vision has been repudiated by the Court in hundreds of cases involving the other parts of the Bill of Rights that have been fully incorporated against the states. After Heller, it is hard to conceive how Cruikshank can still stand, so a Fourteenth Amendment concurrence would not really have swept further — just faster. Also, such a concurrence would have provided greater legal clarity, eliminating any confusion that may now exist among lower courts that might still feel formally bound by Cruikshank — despite Heller’s winks, nods, and logic — until the Supreme Court incants the magic words “hereby overruled.”

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