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"When You Pry Them from My Cold, Dead Hands":

A reader writes (semi-jocularly), "is it true that dildos have meaningful constitutional protection but that guns [do not] (notwithstanding their textual protection)?" Well, remember that this is the Fifth Circuit, which held in U.S. v. Emerson that the Second Amendment does secure an individual right -- so both dildoes and guns are protected there.

alkali (mail):
Maybe they're OK if you join the militia first.
2.13.2008 1:31pm
Hillbilly Jane (mail):
Maybe they should bring back the duel.
2.13.2008 1:36pm
gregh (mail):
Rather like how I can burn a flag but not my leaves, even if I'm burning my leaves as a protest against a law that says I can't burn my leaves.
2.13.2008 1:41pm
Thoughtful (mail):
The heading reminds me of one of my favorite Stephen Colbert lines ever, which given Eugene's interests he should enjoy as well.

Commenting on a then current NY Times article on selling body parts, Colbert (albeit sarcastically) argues for allowing the selling of body parts, concluding with "If they won't pay for them, they won't get my fingers until they pry them from my cold dead hands..."
2.13.2008 1:48pm
Mary Katherine Day-Petrano (mail):
Isn't this incredible? Dildoes have more "meaningful constitutional protections" and persons with disabilities in this Country and the 50 states. No wonder the moral fabric of our once Great Nation is going to H*&% in a teapot.
2.13.2008 1:49pm
Mary Katherine Day-Petrano (mail):
corr: "and persons with disabilities" = than persons with disabilities.
2.13.2008 1:50pm
Brett Bellmore:

which held in U.S. v. Emerson that the Second Amendment does secure an individual right


Which right proved to be essentially worthless, given their tactic of applying rational basis review and calling it "strict scrutiny".
2.13.2008 1:52pm
CEB:
Meh. It's no stranger than comparing the Constitutional protections for child pornography (Ashcroft v. Free Speech Coalition) and speech in support of a political candidate (McCain-Feingold).
2.13.2008 2:03pm
Pendulum (mail):
Ms Petrano, can't we have this discussion without lamentations that some wonderful moral fabric of the past is evaporating? This nostalgia for the days of segregation, so long as guns were unhindered by regulation, is disconcerting.

Meanwhile, dildos have less serious consequences for safety and the rights of others than guns do. Therefore, absent issues of constitutional text, it seems sensible for a statutory scheme to place fewer restrictions on dildos than on guns (if any on either).
2.13.2008 2:05pm
BruceM (mail) (www):
Well remember the 5th Circuit's Emerson decision gave lip service to an "individual right" under the 2nd Amendment but affirmed the conviction nonetheless, letting the state violate that individual right. So, expect the rogue panel that allowed dildo possession to be reversed by the en banc court. No criminal defendant gets a conviction reversed in the 5th Circuit by a statute being unconstitutional.
2.13.2008 2:06pm
Elliot Reed (mail):
Mary—I agree that there's something seriously wrong about the fact that dildoes have more constitutional protection than the disabled. But the problem here is all on the disability end, where even denying the disabled access to court is A-OK by SCOTUS.
2.13.2008 2:14pm
juris_imprudent (mail):
Well remember the 5th Circuit's Emerson decision gave lip service to an "individual right" under the 2nd Amendment but affirmed the conviction nonetheless

Ah, that's the tricky part. The 5th supported the District Court's individual right finding, but allowed the 'narrowly tailored' exception during challenges to Emerson's INDICTMENT. SCotUS refused to grant cert presumably because the issue wasn't ripe. When Emerson appealed his CONVICTION, the 5th and Supremes said, "well we already decided the issue". Very cute, huh.
2.13.2008 2:17pm
JBL:
So, the state could still require proper licensing, right? Certification of state-approved instruction? Concealed carry permits? Safety inspections?
2.13.2008 2:17pm
Thales (mail) (www):
"Rather like how I can burn a flag but not my leaves, even if I'm burning my leaves as a protest against a law that says I can't burn my leaves."

If there is a general statute forbidding public burning of *anything*, which has a rational basis rooted in public safety or environmental protection or something like that, and the effect of which does not unreasonably restrict the time, place and manner of expressive activity, it can be used to prosecute both leaf and flag burning. It's aiming the statute specifically at a mode of expression or a particular viewpoint that's unconstitutional.
2.13.2008 2:17pm
Elliot Reed (mail):
Oops, I had the ruling in Lane backwards. Thankfully, denying the disabled access to court is only A-OK with the four-Justice real conservative block on SCOTUS.
2.13.2008 2:19pm
Sasha Volokh (mail) (www):
Elliott: Let's not confuse "A-OK" with "not within Congress's Section 5 powers"....
2.13.2008 2:31pm
CrazyTrain (mail):
Well, I know it was "jocular", but it is still a silly way to frame the issue. There is no question that adults in this country have a right not to be prosecuted for a crime, i.e. deprived of their liberty in a very meaningful way, without due process of law. Depriving adults of their liberty for engaging in consensual sexual activity in private (with or without a dildo) is, in my humble opinion, a deprivation of liberty without due process of law. I would submit that the great, great majority of my fellow countrymen would agree. Stated otherwise, it's not about dildoes, it's about citizens in a free state being free from criminal sanction when the government has no reason to criminally sanction those citizens.

Incidentally, and for whatever it's worth, I do strongly agree with the so-called individual rights view of the 2nd Amendment and do think the DC Circuit should be affirmed (and I expect a strong majority in favor of some form of the individual rights view will prevail in Heller).
2.13.2008 2:40pm
Elliot Reed (mail):
Sasha—certainly. But sometimes bigotry has to be called out for what it is.
2.13.2008 2:50pm
Mark Field (mail):

Maybe they should bring back the duel.


Dildos at 20 paces?
2.13.2008 3:23pm
Sasha Volokh (mail) (www):
Elliott: I agree with the dissenters in Tennessee v. Lane, for reasons fairly narrowly confined to the Section 5 reasoning, but I wouldn't call myself bigoted against the disabled.
2.13.2008 3:40pm
eck:
This case will likely be decided under the rule announced in Schmuck v. United States, 489 U.S. 705 (1989).
2.13.2008 5:16pm
KeithK (mail):

Depriving adults of their liberty for engaging in consensual sexual activity in private is, in my humble opinion, a deprivation of liberty without due process of law.


If the person is arrested and charged according to the letter and spirit of the law, following all appropriate procedures and given the required protections (e.g. not required to testify against himself) then I fail to see how there is any lack of due process.

Yes, I am well aware of substantive due process. I just agree with Thomas and Scalia that it is an oxymoron.
2.13.2008 7:09pm
Hoosier:
I am an American with a disability, and I find the protections granted to me are really quite extensive. Of course, one could always ask for perfection, but things are pretty good for us.

On the dildoes: I think people have a right to have them, but I can't support concealed carry "rights." They should be there for all to see, especially if they are to serve their deterent purpose.
2.13.2008 8:42pm
MXE (mail):
Well, there are dildoes, and then there are assault dildoes; I mean, we need some reasonable regulations here. All it takes is one maniac to spray down an entire mall full of people.
2.14.2008 2:22am
Happyshooter:
What if someone combined a dildo and a pistol?

Would the overwhelming unregulatable constitutional right to purchase, own, carry, and use a didlo overwhelm the government's interest in regulating the purchase, ownership, carrying, and use of a pistol?
2.14.2008 8:50am
Hoosier:
MXE--Very good. It's not "all or nothing" with these things. Common sense regulation is in order.

>>What if someone combined a dildo and a pistol?

Insert pun based on any two of the following terms: 'Penile code', 'more-bang-for-the-buck', 'Silver Bullet', 'insert'.
2.14.2008 9:13am
Semper Why (mail):
Mark: Dildos at 20 paces?

And then do what? Hit one's opponent about the head until they're cockeyed?
2.14.2008 10:30am
Joe Bingham (mail):
Elliott: I agree with the dissenters in Tennessee v. Lane, for reasons fairly narrowly confined to the Section 5 reasoning, but I wouldn't call myself bigoted against the disabled.

That's where great minds like Elliot come in. They have to protect us from the mass of unknowing bigots like you by "calling you out." Where would we be without them?

We wouldn't know from anything you or the dissenting justices said that y'all think denying disabled people access to the courts is A-OK. That's why it's important for people like Elliot, who have figured it out from a careful reading between the lines of judicial decisions, to let us know.

On the other hand, maybe people like Elliot (and Lithwick) just look at the results of a decision and dismiss the legal reasoning. Hm...
2.14.2008 6:12pm
Joe Bingham (mail):
(That comment directed at Sasha V.)
2.14.2008 6:12pm
Whew (mail):
Insert "communal right could get messy" joke here.
2.15.2008 1:32pm