BuckeyeBlog

Glenn Reynolds thinks the collective rights view is dead .

Sorry, professor, but you’re too credulous. While it might be true that no one put forth an explicit statement saying “collective rights is the wave of the future,” that’s precisely what this case is about. Even in a collective rights society, lip service will be paid to your individual dignity. Probably even more so than in an individual rights society; the need will be greater, since there won’t be any actual individual rights.

Indeed.

Blogger-extrordinaire-and-pretty-good-law-professor-to-boot Glenn Reynolds tells Heller celebrants, “Don’t get cocky.”

Reynolds argued that the Heller litigation was a mistake, on the grounds that there would not be five votes to protect the Constitution on the Supreme Court. (I agreed, and was scared to death Heller would be an outright loss.) He was wrong on that point (as was I), but not by much. (The problem is Justice Kennedy. The NRA, in a stunt, filed suit to overturn the Chicago gun ban the day Heller came down. Can Kennedy be counted upon? Hardly. Moreover, who knows what the court will look like one to 10 years hence? All of these cases can be, indeed must be, litigated over a long time period to get a ruling out of the high court. But the state of individual rights is precarious, and remains as likely to be lost as affirmed in the years to come.)

But here’s an interesting point in his column: Limiting the Commerce Clause is another fundamentally important legal action to take, one that will take years to implement. The Rehnquist Court threw the door to this wide open. What’s missing, Reynolds argues, is the hordes of public interest lawyers to make sure the judiciary follows through:

In the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling - and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”

Whew. That was a close one.

Four justices of the United States Supreme Court are prepared to rule that there is such a thing as a collective right.

Good lord.

So proponents of individual freedom won out, by the thinnest of margins. Good on Justice Kennedy, the unreliable justice.

Good on the strategists who rolled the dice under tough circumstances and won (let’s forget how easily it could have gone the other way, and what a disaster that would have been, for gun rights and all rights).

An amusing footnote on reporter editorializing: These two paragraphs just don’t belong in the story.

The ruling came the day after a worker at a plastics plant in Henderson, Kentucky, used a handgun to shoot and kill five people inside the factory before killing himself, the latest in a series of deadly shooting sprees across the country.

The United States is estimated to have the world’s highest civilian gun ownership rate. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data.

Really, they ought to know better. If they want to argue for liberal concealed carry laws, so that victims such as these could protect themselves from assaults, they should write a column saying so. Sheesh.

A lot of excitement on the gun rights side of the aisle today, as everyone who is invested in the issue expects the Supreme Court to rule on Heller. A mix of blogs, press reports and gossip suggests that Scalia will write an opinion that holds the Second Amendment protects an individual right rather than a collective right.

That’s a scary concept. There’s no such thing as a collective right. You have to go to the Soviet constitution or the United Nations for such a thing. A collective right is no right. Put it this way: If Ted Strickland or Bob Taft publishes a newspaper, does that satisfy your First Amendment right of free speech? Of course not. The idea is absurd, and it does not become less so by moving the concept from the First to the Second. Once allow that idea to take root in the Constitution on a right you don’t like, and sure as the sun you’ll find it applies to the rights you do like.

(I quizzed one “expert,” a professor and author of a book on the topic, to name another collective right in the Constitution, and he said “jury,” on the grounds that it takes a group of people to compose it. Talk about not clear on the concept. Another expert, also an author, one who knew what he was talking about, was stumped, for the valid reason that there isn’t any such thing.)

After the army, the courthouse is the third line of defense for civil society. If the bailiff in this story had been a public school student, would he have suffered only a two-week suspension? “Zero tolerance” seems too often to lead to zero common sense.

Here’s supporting the judge in his right to carry. Let’s just hope he’s not a hothead himself.