I LOVE how CNN calls retiring Supreme Court Justice David Souter…

May 1st, 2009

…a “fierce defender of individual rights” when he was one of the few judges who actually voted AGAINST the individual right to keep and bear arms in the Heller case.

Entry Filed under: Observations

11 Comments Add your own

  • 1. illusory tenant  |  May 1st, 2009 at 6:24 pm

    No he didn’t. This was Justice Souter’s view: “Surely [the Second Amendment] protects a right that can be enforced by individuals.”

  • 2. Elliot  |  May 1st, 2009 at 6:49 pm

    I’m not sure where you’re getting your information. He joined the dissent: http://www.law.cornell.edu/supct/html/07-290.ZS.html

  • 3. illusory tenant  |  May 1st, 2009 at 7:02 pm

    Read the first paragraph of Justice Stevens’s dissent, which Justice Souter joined (along with Justices Ginsburg and Breyer). The Court was unanimous in finding that the Second Amendment protects an individual — as opposed to a collective — right to keep and bear arms.

  • 4. illusory tenant  |  May 1st, 2009 at 7:34 pm

    Just in case you don’t believe me (not that there’s any reason why you shouldn’t!), take it from Prof. Glenn “Instapundit” Reynolds:

    “Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.”


  • 5. Elliot  |  May 1st, 2009 at 7:52 pm

    This is exactly what Souter wrote in his dissent:

    “The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not.


    The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests.”


    Souter expressly states that the Second Amendment protects militia-related not self defense-related interests. How can you possibly twist this into a recognition of an individual right to keep and bear arms? And even if he did say there was an individual right, he voted to uphold the functional equivalent of a complete ban on gun ownership (and certainly on bearing a gun). What is a right worth if it can’t be exercised?

  • 6. illusory tenant  |  May 1st, 2009 at 8:43 pm

    A separate question, and a separate argument.

    They are talking about what activities the Second Amendment protects, and to what extent Congress (or in this case, the District of Columbia) may regulate which activities are protected and which are not.

    The dissenters clearly differed with the majority over the scope of activities protected by the 2A, its prefatory Militia Clause being necessarily crucial to the competing analyses, but the entire Court agrees that those rights guaranteed by the 2A — whatever they are — may be claimed by individuals.

    That’s the important and “most notable” point Reynolds is talking about also.

    So it’s simply not correct to state that Justice Souter voted against the claim that the 2A protects individual rights. He didn’t.

    That is the question that has plagued the courts for decades and Heller unanimously resolved it, in favor of the “individual rights” view.

  • 7. Mike H  |  May 1st, 2009 at 10:21 pm

    Didn’t Souter also side with the majority in the infamous Kelo case? You know, the one that affirmed eminent domain and the state’s ability to take your property to build a shopping mall.

    Sounds like a “fierce defender” of liberty to me.

  • 8. Elliot  |  May 1st, 2009 at 10:56 pm

    Illusury, we both know that there is no way anyone but a lawyer could claim with a straight face that Souter is a “fierce defender of the individual right” to keep and bear arms.

    Yes, Souter does say the Second Amendment represents an individual right: “The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred”, but then both he and Stevens argue that the right can only be exercised collectively: “As used in the Second Amendment , the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.” Stevens goes on to write, “When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms.”

    What sort of “individual” right can only be exercised collectively?

    You can continue quibbling as much as you want about the semantics used in the dissent, but I will not concede that a judge who believes that a complete ban on loaded weapons in one’s OWN home passes Constitutional muster can be characterized as a “fierce” defender of the right of an individual to keep and bear arms.

  • 9. Brad V  |  May 2nd, 2009 at 8:28 am

    Well played, Elliot.

  • 10. Elliot  |  May 2nd, 2009 at 12:08 pm

    I do think I need to say that Illusury Tenant is correct that the exact wording of my post is technically incorrect.

    But since I believe the spirt of the post is true, I’m going to leave it as it is.

  • 11. John Foust  |  May 3rd, 2009 at 1:32 pm


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