In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose. -- Erwin Chemerinsky
Let's pause -- wait, let's grind to a halt -- to remember that neither the Second nor any of the other first ten Amendments CREATED any rights at all, similarly to how neither the Constitution nor any of its Amendments CREATED the right to property. No, those rights were, instead, recognized. Liberal constitutional theorists may be stunned to see repeated in print the fact that property held by American citizens predated the American government, including 'gun property;' the recognized right to the holding of such property cannot possibly derive from the rational relation of the right to the achievement of any type of government purpose, legitimate or otherwise, because rights not created by the Federal government are not, a fortiori, created by the Federal government for some instrumental purpose of policy.
Erwin Chemerinsky is a smartypants, and though I somehow missed learning under him when we both were still at USC Law, I hold his dedication and sincerity in high regard. I hold his understanding of law as a tool by which to deploy political power to change social authority in very low regard, and bemoan the fact that a star jurisprudential scholar poached by my other alma mater Duke actually conceives of the Bill of Rights as a catalogue of entitlements permissively invented by some brooding omnipresence of 'The Government' or other.
Scalia's textualism is supposedly absurd and pernicious on its face, yet this kind of phantom Hobbesian positivism -- under which areas of life barred from political reach are in fact conditional privileges handed down by the political sovereign they preceded -- somehow rises to the level of sacred writ? Silly, then, isn't it, that any latter-day fundamental rights claimant magically arrogates what had until one second ago seemed like the extraordinary and singular power of The Government; but oh, yeah, I forgot -- not even oppressed citizens seeking the spontaneous enshrinement of their self-considered liberty interests can create rights. Only as few as a plurality of Supreme Court justices can do that.
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