Apropos mit forrige indlæg om US-forfatningens 2. tillægs historie, har Washington Post bragt et interview med Robert A. Levy, der var den juridiske drivkraft bag landmark-dommen D.C. v. Heller fra 2008 og som vi også tidligere har omtalt. Temaet er ”gun rights after Newtown shooting.”
I Heller nåede højesteret frem til, at 2. forfatningstillæg sikrer borgerne en individuel rettighed til at have våben, også selvom borgerne ikke er medlem af en lokalmilits, så længe våbnet er til selvforsvar i “hjemmet”. McDonald udvider via det 14. forfatningstillæg (se video om, hvad dette tillæg handler om) Heller til også at gælde på delstater. Hvad der præcist skulle forstås ved hjemmet var uklart og den aktuelle appeldom forsøger at afklare spørgsmålet.
Posner skriver på vegne af flertallet (bl.a.):
Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense.
“We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home… The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.”
“Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.”
“The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions.”