James Joyner draws our attention to an article by Greg Easterbrook in the New Republic Online:
Perhaps the most tiresome defense of the SUV is, “No one can tell me what I can drive.” But, of course, government can tell you what you can drive and has been doing so for years. The Bill of Rights creates two specially protected areas of possessions: militia arms and just about anything–newspapers, magazines, books, movies, tickets to live performances–connected with political or artistic expression.
Mr. Joyner responds with a perfectly reasonable rebuttal argument which I recommend you read. But he misses the fundamental flaw in Mr. Easterbrook’s argument. It might be a good idea for Mr. Easterbrook to read the rest of the Bill of Rights, Amendment IX, for example:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Perhaps unlike systems that Mr. Easterbrook might prefer, under the American system unless there’s a specific prohibition against doing something, it’s presumed that we do, in fact, have a right to do it. It might be annoying to Mr. Easterbrook but it’s still a free country. Sort of.
I agree. It’s too bad that nobody else does.
Remember that this is the same Ninth Amendment that Robert Bork called “an inkblot on the Constitution” and that has essentially no case law progeny (i.e., it has been competely ignored almost since the day it was ratified).
There are other examples too — the Contracts Clause and Fourteeth Amendment Privileges and Immunities Clause come to mind.
But unless Richard Posner is appointed Chief Justice, don’t expect anything to change anytime soon. =(