Brady Crap - It’s Not Just For Guns Anymore
Via Uncly-Wuncly and Hardy-Wardy, the Brady Center to Prevent Gun Ownership leaves no pooch unscrewed, decrying not only the Parker decision they’re afraid to appeal but also a well-established canon of interpretation, expressio unius est exclusio alterius (”the expression of one is the exclusion of the other”). Check out page 7 of their Parker Fantasy Fantasy brief:
Rather than addressing the Supreme Court’s actual holding, and Miller’s finding of an inextricable tie between arms possession and participation in a well regulated militia, the Parker court began its discussion of Miller by stating: “On the question of whether the Second Amendment protects an individual or collective right, the Court’s opinion in Miller is most notable for what it omits.” There is, of course, no principle of interpretation that directs courts to construe what higher courts didn’t say, rather than what they did say. This rule of omission is an invention of the Parker majority.
If expressio unius est exclusio alterius were a brand spankin’ new invention of the Parker court, it probably wouldn’t have a Latin name, and I certainly wouldn’t have read about it in law school years ago. Nor, for that matter, would any of the framers of the Constitution have had any doubts or misgivings about the wisdom of adopting an enumerated (and therefore, inherently finite) Bill of Rights. If legislatively declaring certain rights can’t be construed to implicitly exclude others, why was there any controversy over the Bill of Rights, and why the hell did Amendments 9 and 10 end up there?
I will grant the Brady’s one teensy-weensy baby point: as far as I know, the “rule of omission” they decry has traditionally been a canon of statutory interpretation, and U.S. v. Miller is a Supreme Court ruling, not a statute. But if there’s a rational argument for not using the same principle for interpreting court precedents as has always been used for statutes, I have yet to hear it. Even if we were to concede this non-point, however, it’s one thing to extend a legal doctrine into a new context where it has previously not applied, and quite another to “invent” one altogether.
May 18th, 2007 at 10:15 am
[...] Update: Xrlqy Wrlqy brings the Snarkenremarken. [...]
May 19th, 2007 at 1:45 am
Their argument has just enough truth to carry on the paranoid fantasy. US v. Miller does discuss “participation” in a “well regulated militia”. The problem is that Miller is talking about the weapon’s participation. Miller says, fairly directly, that if the weapon is used by the military (militia), the weapon is protected via the 2nd for individual ownership.
I’m not suggesting that you are unfamiliar with Miller. Every time this crap pops up on Volokh, someone has to be reminded that the finding in Miller is that since the court could not find judicial notice that a short barreled shotgun was in regular use by the military, that a short barreled shotgun was therefore not protected by the 2nd.