New Emanations, Old Penumbras?

Be not afraid of any man, no matter what his size. When danger threatens, call on me, and I will equalize.

Colt pistol advertisement, 19th Century.

I was practicing law the last time this happened. I was arguing a novel position in the Alameda County Superior Court, and my opponent slammed me viciously, saying, "Your Honor, Mr. Scheie cannot cite a SINGLE CASE for his position." Humiliated, I spent much of the night in the law library, until I finally found a case, which was right on point!

The court had given both of us another day to do some more research, and I felt quite proud of myself for having found a case. But do you think my opponent was happy at my legal breakthrough? Hell no! When I cited the case, he promptly sneered, "Your Honor, that is just ONE CASE!" (He had found nothing to rebut my position, so my clients won.)

Inconsistencies bother the hell out of me, and I cannot understand the mentality of people who on the one hand believe in a vastly expanded "zone of privacy" -- from Griswold v. Connecticut (contraception) to Roe v. Wade (abortion) and on through to Lawrence v. Texas (sodomy) -- but who think there is no right to possess firearms within that same zone.

There is said to be a "penumbra" emanating from various portions of the Constitution, or even deriving from the concept of freedom itself. Emanations from this penumbra, says the court, give us the right to privacy in our homes which has been expanded over the years, ultimately to the point where states have lost the right to restrict it.

It seems that in general, conservatives tend to dislike the expansion of privacy to deny states' rights, while liberals are all for it. Are they? Is privacy is now the law of the land?

If the right to privacy, deriving as it does from the common law notion that a man's home is his castle, does not include the right to defend it, then of what value is such a right? Is it privacy at all? If, in the name of privacy, a woman is allowed to have an abortion, if contraceptives and sodomy are allowed in the home, it does not take much imagination to see that privacy must also allow guns in the home. Furthermore the Second Amendment recognized that the right to keep and bear arms "shall not be infringed." Retroactive by implication, the language makes clear that the right to keep and bear arms not only predated Griswold, Roe, and Lawrence, it predated the Constitution itself. I submit that the right to be armed is at the essence of privacy and of freedom -- part of that core bundle of rights from which all penumbra emanate -- whether the courts have said so or not.

But wait! Hold on, your Honor! I have found a case!

Just one case (and a dissent within the penumbra of the case at that), but it's still a case! Here is the citation:

QUILICI v. VILLAGE OF MORTON GROVE, 695 F.2d 261 (7th Cir. 1982):

[N]othing could be more fundamental to the "concept of ordered liberty" than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions.

The court today has also refused to recognize the tremendous impact of Morton Grove Ordinance No. 81-11 on personal privacy rights. There is no doubt that the right to one's privacy is afforded constitutional protection. The United States Supreme Court has repeatedly recognized a right to privacy implicit in the federal constitution.

The Morton Grove Ordinance, by prohibiting the possession of a handgun within the confines of the home, violates both the fundamental right to privacy and the fundamental right to defend the home against unlawful intrusion within the parameters of the criminal law. There is no area of human activity more protected by the right to privacy than the right to be free from unnecessary government intrusion in the confines of the home.
....

The right to privacy is one of the most cherished rights an American citizen has; the right to privacy sets America apart from totalitarian states in which the interests of the state prevail over individual rights. A fundamental part of our concept of ordered liberty is the right to protect one's home and family against dangerous intrusions subject to the criminal law. Morton Grove, acting like the omniscient and paternalistic "Big Brother" in George Orwell's novel, "1984", cannot, in the name of public welfare, dictate to its residents that they may not possess a handgun in the privacy of their home. To so prohibit the possession of handguns in the privacy of the home prevents a person from protecting his home and family, endangers law-abiding citizens and renders meaningless the Supreme Court's teaching that "a man's home is his castle."

There may be more cases discussing the Second Amendment in a privacy context, but I think the above supplies at least a good starting point. Dissenting opinion or not, I think it's brilliant. The fact that it is twenty years older than Lawrence's expansion of the privacy penumbra is actually an argument in its favor: yesterday's dissent should be the law of the land today (an oft-recurring legal theme).

My question is quite simple: Might Lawrence have breathed new, unanticipated, life into the Second Amendment? If liberals will not admit this, then what does that say about their consistency? Likewise, if conservative purists cannot stomach citing Lawrence to support the Second Amendment, maybe some gay gun think tank could come along and argue in the alternative.

One thing is clear: some Second Amendment supporters do not like Lawrence and the privacy cases.

Here is my question to them: How does it harm the Second Amendment to claim that Lawrence has breathed new life into it? (Might Lawrence have even strengthened the Second Amendment?)

Legally, it is sometimes a good idea to argue theories in the alternative. I see no reason to establish a division between Second Amendment supporters and right-to-privacy supporters. They should be able to work together when they find common ground, and complement each other's efforts.

No matter what you're allowed do inside your home, it ain't much of a castle if you can't defend it!