Prof wrong about right to bear arms

Contra Costa Times ^ | 12/01/2007 | DAVID T. HARDY

[neverdem]

DAVID T. HARDY From the legal community

PROFESSOR Erwin Chemerisnky's column ("No need to choose meaning of Second Amendment" in the Times Nov. 27), does little justice to the Second Amendment.

He begins by stating that "The language of the Second Amendment is a puzzle," citing its reference both to a "right of the people" to arms, and its reference to the necessity of a well-regulated militia.

The dual nature of the amendment is no mystery. The first Congress sought to reassure two bodies of concerned Americans, one of which (e.g., George Mason) feared that Congress would neglect the militia system, the other of which (e.g., Sam Adams) feared it might disarm the people.

The wording becomes utterly clear once we realize that, at the time, "militia" meant the entire male citizenry, bearing their own arms, and "well-regulated" meant "orderly" (Samuel Johnson's dictionary treated the two as synonyms, and many writers referred to a well-regulated gentleman, or well-regulated tastes). "Orderly, armed, citizens being necessary to a free state, the right of the people to keep and bear arms" makes perfect sense.

We have other, clear evidence as to what the first Congress meant. Even as it debated, Tench Coxe released a widely-reprinted newspaper article describing the amendment as protecting the people's right "to keep and bear their private arms."

Coxe was a friend of James Madison, and Madison wrote back to inform him that the article was in the newspapers in New York, where the first Congress was meeting. There is more: The first Senate voted down a proposal to make it a right to keep and bear arms "for the common defense."

Chemerisnky contends that the Second Amendment was meant only to "keep Congress from interfering with state militias." If so, was Dwight Eisenhower liable to impeachment when he called National Guard units into federal service, to prevent them from being used to stop desegregation? Can any state's militia decide to "go nuclear" at will?

Next, he argues that the Supreme Court in 1939 "rejected the individual rights view of the Second Amendment ... " Quite the contrary. In that case (U.S. v. Miller) the government's primary argument was that the amendment protected only state militias. The Supreme Court did not accept that. Instead it treated the right as individual (the words "National Guard" are nowhere in the ruling; the high court spoke of "militia" in the colonial sense of "every person capable of serving") but limited to firearms suitable for militia or military use.

It cited 19th century state cases that excluded bowie knives and brass knuckles from right to arms provisions.

Finally he contends that, if recognized, the right to arms "is surely not an absolute liberty." Neither is freedom of speech (try threatening the president, or lying to an officer, and see how absolute it is). He argues that guns are simply property and can thus be freely regulated. So are printing presses, we might observe. The framers did not single out arms and presses for special protection because of their economic value.

In law school, we were told to be careful what we ask for, because the fates may give us just that. If the Supreme Court upholds a broad Second Amendment right, tens of millions of gun-owning Americans will be reminded of the high court's role as protector of their Constitution.

If it goes the other way, those millions will be asking how arms ownership, expressly mentioned in that document, is unprotected while abortion (no where mentioned) is broadly protected.

They will come to believe that the Constitution is merely a paper covering for arbitrary judicial rule. This is not a lesson we want taught in a democracy.

Hardy is an attorney and director of the documentary "In Search of the Second Amendment" and is a resident of Tucson, Ariz. He has published 10 law review articles on the right to arms.

[neverdem]

Parker v. Washington D.C. in HTML courtesy of zeugma.

We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (’keepand bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for”bear Arms.”

[Luke Skyfreeper]

They will come to believe that the Constitution is merely a paper covering for arbitrary judicial rule. This is not a lesson we want taught in a democracy.

DA*N straight.

[Psychic Dice]

If the founders intended to disarm Americans, would they have left that chore to descendants one or two centuries later?

[goldstategop]

Liberals cannot insist the Constitution protects only rights they choose to read into it while it abrogates a right that is plainly written into it. If their line of reasoning is allowed to stand, no one's rights will ever be safe.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[fetal heart beats by 21st day]

If one diagrams the amendment, the complete subject is:

“the right of the people to keep and bear arms”

and the complete predicate is:

“shall not be infringed.”

Simple subject: right

[rabscuttle385]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

These "unalienable Rights" imply the right to defend the lives, property, and liberty of yourself, your family, and your community, if need be...from infringement by others and by the Government.

As for the Second Amendment, the text is quite clear: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." Individuals have the right to "keep and bear arms" (including guns). And, of course, individuals may be called upon, in times of need, to repel enemies (as part of the Militia).

[goldstategop]

It makes no sense to assert nine of the 10 Amendments deal with individual rights and the Founders for some mysterious reason, reserved a collective right for the other one.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[spunkets]

"He begins by stating that "The language of the Second Amendment is a puzzle, ..." "

Must be an english teacher.

[robomatik]

Mossberg 500A Cruiser with Surefire Tactical Light.
this is my weapon (but not my pic). damn fine weapon!

[neverdem]

LOL!

[fetal heart beats by 21st day]

If he was an honest English teacher, the language would not be a puzzle.

[infidel29]

There are no other amendments in the Bill of Rights that deal with the "rights of the state", why would the second amendment be the only one?

Unless I'm mistaken the "Bill of Rights" amendments deal with the rights of the people.

[goldstategop]

The 10 Amendments only state for clarity, a few of the rights possessed by the people. It does NOT grant them. The rights of the people come from their Creator. That is how American constitutional theory has always read the Bill Of Rights.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[doc1019]

I’m sure that somewhere in all of history we can find at least one founding father pronouncing that the Constitution is a “living” document, evolving and variable in its content. A document subject to the times and vagaries of the situation imposed upon it! /s

[gusopol3]

wow, is it really that simple?

[infidel29]

Correct, the rights enumerated are not "granted" by the state and the Bill of Rights deals only with the rights of the people. Why would the second amendment be interpreted as a right granted to the people by the state or a right of the state and not the people?

It wouldn't.

[Travis McGee]

Chemerinsky is to the left of Lenin.

If it promotes freedom, he says it is unconstitutional.

If it promotes state power and socialism, he finds for it.

[neverdem]

Here’s Hardy.

[Travis McGee]

Let's just take it from the "father of the bill of rights."

"What is the militia? It is the whole people, except for a few public officials." ~George Mason, 1788

[ItsForTheChildren]

Here's what Madison intended.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Reads to me that he believed the right of the people to keep and bear arms was a foregone conclusion. It shall not be infringed because a well regulated militia is the best security of a free country.