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I am American, but the relevance of there being an explicit right in the US constitution isn’t as part of some hypothetical claim that one may only do things wh
by akerl_ 7y ago
I am American, but the relevance of there being an explicit right in the US constitution isn’t as part of some hypothetical claim that one may only do things which are enumerated. The relevance is that in the US, removing a named right is more difficult than removing an unnamed right. In the absurd case, this is obviously not a risk, because an attempt to ban standing on one leg is obviously not reasonable. But if the 2nd amendment didn’t exist, gun regulation in the US would have looked very different over the past century.
- defen 7y ago> removing a named right is more difficult than removing an unnamed right. That doesn't immediately strike me as obviously true. Many states attempted to remove the unnamed right to an abortion (by which I mean, abortion is not explicitly mentioned in the Constitution); but that was struck down on 14th Amendment grounds. It wouldn't surprise me if an enterprising lawyer could contest a statewide firearm ban (assuming no second amendment) via the commerce clause, for example.
- akerl_ 7y agoI think your point agrees with mine. In the US, the path to defending an unnamed right generally involves an “enterprising lawyer” drawing a line to try to bucket it as a part of a named right. Defending the named right directly requires strictly less mental gymnastics.