Posted on 07/16/2004 8:59:00 AM PDT by neverdem
The first in a series of articles on the importance of the upcoming general election
Does the Second Amendment guarantee a right to states rather than an individual right to choose to own firearms? One clue to the answer is looking at who supports each position. The few law-review articles supporting the states'-right view all come from advocates, most of them employed by or associated with anti-gun groups.
The Verdict of Scholarship Yet, intellectual honesty compels many far more important scholars to accept the standard model of the Amendment as an individual's right despite personal anti-gun feelings. Famed constitutional lawyer and Harvard law professor Alan Dershowitz, who defended O.J. Simpson and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed. Yet, says Dershowitz: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
Another former ACLU national board member, Duke Law School's William Van Alstyne, who is among the premier constitutional scholars of modern times, contemptuously dismisses the states'-right view. "If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century for no known writing surviving from the period between 1787 and 1791 states such a thesis." He emphasizes that to take civil liberties seriously requires respecting the Second Amendment no less than freedom of speech and religion and the other rights in the First Amendment. [Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236 (1994).]
Another major figure in modern constitutional law is Harvard law professor Lawrence Tribe who is anti-gun and a liberal. Earlier versions of his famous text endorsed the states'-right view, but, having examined the historical evidence for himself, he now reluctantly admits the Amendment guarantees "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." [Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000)].
RIGHT OF THE PEOPLE Anti-gun writers cite my article (83 Michigan Law Review, pp. 204-273) as the definitive standard-model treatment. Yet, remarkably, these anti-gun writers give only that one initial mention. If they have answers to the 50 pages of evidence I offer for the standard model, they neglect to offer them. So I shall limit myself to just two examples of my unrefuted evidence.
Written by James Madison, the Bill of Rights was enacted as a single document. Whenever it says "right of the people," it does so to describe individual rights. To ignore this point you must think that in the First Amendment Madison used "right of the people" to describe an individual right. But then, 16 words later, he used it in the Second Amendment meaning a state's right. But then, 46 words later, the Fourth Amendment says "right of the people" meaning an individual right again. And then "right of the people" was used in the Ninth Amendment to mean--guess what--a right of the people.
In fact, throughout the Bill of Rights and the Constitution the word "right" is always used to refer to something individuals have and never used to refer to powers possessed by government. Such powers are always called "power" or "authority."
THE PURPOSE OF THE MILITIA Anti-gun advocates imply from the Amendment's reference to a "well-regulated militia" that government can regulate gun ownership. But that is totally outside the 18th century usage of "well regulated," which means "well trained" and "operating properly." Likewise, anti-gun advocates think the mention of militia show the right to arms applies only to states arming their militias. But in the 18th century "militia" did not mean "army" or "soldiers." The militia was a system of laws under which every man and every household was to have guns (unorganized militia), while most men of military age were required to appear with their guns when called out for drill or war (organized militia). The arms of the militia were the personally owned arms of its members.
It is somewhat misleading, however, to see the Second Amendment as a right to have arms for collective defense against tyranny or foreign enemies. The Amendment's central theme was what our Founding Fathers saw as the basic human right to possess arms for individual self-defense. But the Founders did not misconstrue that, as we so often do, as just a right to defense against nonpolitical criminals. The Founders believed individuals needed to be armed for political self-defense (e.g., Jews resisting the Gestapo) and that, in the ultimate extreme, people must join together to overthrow tyranny. (Note that the literal meaning of the term "revolution" was an uprising seeking to bring government back to its original free form, not to produce some new form.) [Kates, "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).]
WHAT LAWS DOES THE AMENDMENT PRECLUDE? The NRA's experts like Prof. Steve Halbrook believe the Amendment does more than I feel it does. And another expert, Prof. Nelson Lund, thinks neither Halbrook nor I interpret the Amendment broadly enough. We all agree, however, that the Amendment guarantees every responsible law-abiding adult freedom of choice regarding guns.
So assault-weapon bans are unconstitutional. "Assault weapons" are just semiautomatic rifles differing only in that they are down-powered from those of the WWII era. Banning them infringes on the freedom of law-abiding, responsible adults to choose which firearms they wish to have. Magazine limitations are invalid for the same reason.
So-called Saturday Night Special bans are valid only insofar as a particular model of firearm is provably unreliable or dangerous to use in the manner it is reasonably foreseeable to be used. The reasons for most SNS bans--that the guns are small, light and/or inexpensive--are invalid under the Second Amendment. Nor can states push gun prices to astronomical levels by requiring that guns incorporate dubious or unnecessary safety features.
LIMITS ON THE AMENDMENT The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered.
Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)
Though Professors Lund and Halbrook disagree, I think gun registration and license requirements to own are valid. What is invalid is licensing as traditionally practiced in New York. For licensing to be valid, licenses must be granted to all law-abiding, responsible applicants and within some very short period like 72 hours. If New York cannot manage to accomplish this then it cannot constitutionally require a license to own a firearm.
The right to bear arms includes a right to carry them but not concealed. On the other hand, if a license is required for concealed carry, equal standards must be applied. If retired cops routinely get licenses, so must everyone else who may be in danger from their connection with the justice system. And if the wealthy and influential routinely get licenses, so must the entire responsible, law-abiding adult populace.
VINDICATING THE RIGHT TODAY The Supreme Court has briefly referred to the Amendment in almost 40 different opinions, all showing that it guarantees an individual right to arms. But the court has never provided a full and lengthy exposition of the Amendment. In fact, several lengthy and considered opinions would be required to illuminate the Amendment's various aspects.
To any judge willing to follow the law, it must be clear that the Amendment guarantees the freedom of all responsible, law-abiding adults to choose to possess firearms for personal and family defense. We must depend on the president to appoint such judges and the Senate to confirm them.
Several vacancies on the U.S. Supreme court are likely during the next presidential term. Many appointments are also expected on lower federal and appellate courts. The president and members of the senate who are elected in November will play a major role in the rights of gun owners for many years.
Oh my. Please don't misinterpret an explanation of a ruling as my support of that ruling. Why would you do that?
"As far as that interpretation not mattering when it comes to the law, I disagree."
Well, what I meant was that his interpretation doesn't matter -- if the USSC, or any court, had that interpretation, it would matter.
Here was your first question to me about my point:
Is this Clarence Thomas Appreciation Week, or does your post have a point?
Post Reply | Private Reply | *To 249*
Since you did not specify otherwise, I took it as refering to #249, since #249 was the post you were replying to. How illogical of me.
Seems a bit disingenuous on your part to quote Justice Thomas admonishing Congress but leaving out his criticism of the same actions by his own USSC.
You're the one who said you were sure Justice Thomas had no problem funding judicial activism.
You failed to point out Justice Thomas' criticism of judicial activism in a prior case which you yourself cited. Now, who was being disingenuous?
Given that he's criticized both, I'm simply asking the point of your post #190.
My point in #190 should have been obvious, but I'll repeat it:
"The gun grabbers will use hook or crook to get around the Second Amendment." That was the point.
To quote from Justice Thomas in Printz:
In my "revisionist" view, see post, at 3, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce . . . among the several states," does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion).
Lopez, if you'll recall, was the case in which Justice Thomas wrote so eloquently about the error of the substantial effects doctrine.
I'll be glad to post some of his well thought out opinion from the case. You have but to ask.
Why? Because your comments seem supportive of - or at least sympathetic towards - the "collective right" interpretation, that's why. If I misread that, I apologize.
I suppose we could close our eyes to the fact that the vast majority of the federal courts have ruled that way ....
I say we leave the USSC out of this and strengthen state constitutions.
I say we leave the USSC out of this and strengthen state constitutions.
What made you change your mind?
And third, I sure do wish that Justice Thomas would spend less time convincing the public of his position and more time convincing his fellow Justices TO ACCEPT A RKBA CASE.
310 posted on 07/18/2004 5:40:54 PM CDT by robertpaulsen
Two different areas, buttinski. 1) Should Clarence Thomas a) publicly discuss ad nauseum his conservative position on everything from abortion to gun rights? or b) be spending that time pushing his fellow members to take on a RKBA case? Corrct answer: B
2) Should the citizens of a state like California be pushing for a) the USSC to hear a god-awful case like Silveira v Lockyer? or b) their state legislature to amend the state constitution to protect their RKBA? Correct answer: B
New year brings new laws
Another new law permits criminal charges against gun owners who fail to store weapons safely _ perhaps by using trigger locks _ in cases where a child ends up injuring someone with the gun. The gun owner could be fined and jailed for 30 days.
Such laws won't stop gun violence, but they can have a real impact, said Barbara Shaw, director of the Illinois Violence Prevention Authority.
``The more society puts its collective foot down, so to speak, the more deterrence we´ll have,´´ she said.
Gov. Blagojevich Launches Children's Mental Health Partnership
Barbara Shaw, Director of the Illinois Violence Prevention Authority has been appointed Partnership Chairwoman. Referring to the challenging task before her committee, she commented, "I look forward to working with the Partnership and the Blagojevich Administration to build our children's social and emotional strength so they can become happy, achieving students and productive, caring citizens. We expect that Illinois will be a national leader in this effort."
I wonder. Is it any less severe if the child injures someone else with the cocaine they found? The knives they found? The cleaning products, gasoline, lighters, etc. that they found?
I wonder if there are laws that permit criminal charges against the child's guardians for that?
"Gov. Blagojevich Launches Children's Mental Health Partnership"
I take it that you think this is a method to ban future gun ownership? I'd say that you're seeing black helicopters, but you may have a point. The more kids the state diagnoses with ADD, short-term depression, "behavioral problems", etc., the less gun permits that have to issue later.
Good ol' Ken H -- always thinkin'.
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