—or even the white spaces between lines of constitutionaltext.
Compassion in Dying v. Washington
, 79 F.3d790 (9th Cir. 1996) (en banc),
rev’d sub nom. Washington
, 521 U.S. 702 (1997). But, as the panel amplydemonstrates, when we’re none too keen on a particular con-stitutional guarantee, we can be equally ingenious in buryinglanguage that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others likesenile relatives to be cooped up in a nursing home until theyquit annoying us. As guardians of the Constitution, we mustbe consistent in interpreting its provisions. If we adopt a juris-prudence sympathetic to individual rights, we must give broadcompass to all constitutional provisions that protect individu-als from tyranny. If we take a more statist approach, we mustgive all such provisions narrow scope. Expanding some togargantuan proportions while discarding others like a crum-pled gum wrapper is not faithfully applying the Constitution;it’s using our power as federal judges to constitutionalize ourpersonal preferences. The able judges of the panel majority are usually very sym-pathetic to individual rights, but they have succumbed to thetemptation to pick and choose. Had they brought the samegenerous approach to the Second Amendment that they rou-tinely bring to the First, Fourth and selected portions of theFifth, they would have had no trouble finding an individualright to bear arms. Indeed, to conclude otherwise, they had toignore binding precedent.
, 307 U.S.174 (1939), did
hold that the defendants lacked standingto raise a Second Amendment defense, even though the gov-ernment argued the collective rights theory in its brief.
Kleinfeld Dissent at 6011-12;
Brannon P. Denning &Glenn H. Reynolds,
’s Tale: A Reply to David Yassky
, 65 Law & Contemp. Probs. 113, 117-18 (2002). TheSupreme Court reached the Second Amendment claim andrejected it
on the merits
after finding no evidence that Miller’s