Skip to comments.Prof wrong about right to bear arms
Posted on 12/07/2007 5:57:37 PM PST by 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.
That's right. I guessed wrong though, he's a lawyer. Erwin's the Alston & Baird Professor of Law at Duke Law School. He's a political lawyer. Another of his projects is representing one of the jihadis in Guantanomo. I wouldn't expect any honesty from this guy. He's got an agenda to advance.
"The ACLU of Southern California celebrates it's annual Bill of Rights Dinner on Friday, January 15, at the Regent Beverly Wilshire Hotel in an event to recognize the commitment of those who champion the ideals embodied in our nation's Bill of Rights.
Writer/director Steven Zaillian and civil rights attorney Constance Rice will be presented with Bill of Rights Awards and Professor Erwin Chemerinsky with the Eason Monroe Courageous Advocate Award."
The Bill of Rights does not state what citizens can do. Its states what governments CAN’T do.
***Chemerisnky contends that the Second Amendment was meant only to “keep Congress from interfering with state militias.” ***
Not so. Before the Civil War the Second Ammendment was considered an INDIVIDUAL right.
In the Dred Scott decision Justice John Taney concluded that if “persons of the Negro race” were considered citizens they would have the same rights as others. The right to enter and leave states..the right to hold political meedtings...and THE RIGHT TO CARRY ARMS WHEREVER THEY WENT.
After the Civil war Blacks were freed and considered citizens. This required a new interpretation of the 2nd. and they then concluded that it was not an individual right but a “collective” right. Now they could pass laws to disarm blacks and Indians and place them back in second class citizenship.
When someone burns a cross on your lawn the best fire hose is an AK-47.
There have been many 5 - 4 rulings over the decades that have caused me to "come to believe" that. The nation cannot survive a Democrat President appointing any more liberal activist justices (ie. Stephen Breyer) to the Supreme Court.
“reference both to a “right of the people” to arms, and its reference to the necessity of a well-regulated militia.”
Because neither involved the government. Unlike today with the failure of every level of government, our founding fathers did not want government in everything. They told us to keep it small.
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State.
... Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which shall have been proposed to the said Constitution will receive an early and mature Consideration: We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution.
Here is what the New York Constitution = Here is what the New York convention
Now add a heat shield, a collapsable buttstock, and ghost ring sights.
Who knows, it could be the very point that decides the battle.
The Bill of Rights was passed for the purpose of guaranteeing rights of the CITIZENS of the United States.
When you understand that simple, basic AND UNDENIABLE point, THEN IT MAKES ABSOLUTELY NO SENSE WHATSOEVER THAT THE SECOND AMENDMENT COULD POSSIBLY BE INTERPRETED IN ANY OTHER WAY THAN AS THE GUARANTEE OF THE RIGHTS OF INDIVIDUAL AMERICANS.
Ha! Don’t forget the SOG knife.
But we’ve already agreed to ignore the Sixth Amendment for the sake of the war on terror. That also places our rights in jeopardy.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
The War on Terror is not a “criminal prosecution”.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.