An excellent point:
Balkinization wrote:
Eugene Kontorovich, my Northwestern Law School colleague and friend, has suggested the Second Amendment is violated by a proposal to limit people to carrying only one gun. “Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm.” The proposal has been the subject of an extended debate on Volokh Conspiracy with Nicholas Rosencrantz.
If this strict textualism is to be followed, there is an interesting implication: perhaps there is only a right to bear “arms” – plural – but not to bear a single arm, about which the Constitution is silent. So an individual has a right to walk around with multiple guns on his person. But if he’s caught with only one firearm, the Constitution is silent and the state may criminally prosecute him if it sees fit.
One implication is that Heller is wrongly decided, since the claimant there only alleged his intention to possess a single firearm. He should have asked for an arsenal.
There are some attractions to this as a matter of policy. If the price of carrying a gun is that you have to carry two, most people will find this literally too heavy a price to pay. Guns weigh a lot. So a government that wants to minimize the amount of artillery on the street might well want to pursue this.
But, of course, policy is irrelevant. We are trying to be strict textualists here. So the objection that has probably already occurred to you – it’s ridiculous to let people carry two guns but not one – is ruled out of order from the start. A basic requirement of this exercise is to put considerations of policy, danger to the public, and common sense out of our minds.
If this strict textualism is to be followed, there is an interesting implication: perhaps there is only a right to bear “arms” – plural – but not to bear a single arm, about which the Constitution is silent. So an individual has a right to walk around with multiple guns on his person. But if he’s caught with only one firearm, the Constitution is silent and the state may criminally prosecute him if it sees fit.
One implication is that Heller is wrongly decided, since the claimant there only alleged his intention to possess a single firearm. He should have asked for an arsenal.
There are some attractions to this as a matter of policy. If the price of carrying a gun is that you have to carry two, most people will find this literally too heavy a price to pay. Guns weigh a lot. So a government that wants to minimize the amount of artillery on the street might well want to pursue this.
But, of course, policy is irrelevant. We are trying to be strict textualists here. So the objection that has probably already occurred to you – it’s ridiculous to let people carry two guns but not one – is ruled out of order from the start. A basic requirement of this exercise is to put considerations of policy, danger to the public, and common sense out of our minds.
I love nerdy law professor banter.
