Posted on 10/29/2009 4:49:23 AM PDT by marktwain
That’s the title of a new article in the Columbia Law Review (the link is just to an abstract, since no PDF is available). The law review asked me whether I could write a commentary for its online supplement (the Sidebar), and I did, here, under the title The First and Second Amendments; the author’s response to my response is here. Here’s the text of my article (for the footnotes, see the version I link to above):
I. The Supposed Analogy to Obscenity
Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old. District of Columbia v. Heller itself makes them, and they can often make sense.
Such analogies might, for instance, yield the conclusion that (1) most guns (like most speech) are fully protected by the Second Amendment, subject to some restrictions that leave open “ample alternative channels” for effective self-defense, but (2) some narrow categories of valueless or marginal weapons (like some speech) are unprotected. Distinctions between the two Amendments can make sense, too, though I leave them for other articles.
But Guns as Smut does something peculiar: It analogizes a core category of private arms to one of the least protected and marginal categories of speech (obscenity). It’s hard to see any justification for such an analogy, other than a purely instrumental one.
(Excerpt) Read more at volokh.com ...
The second amendment was included because the founding fathers recognized our God Given rights to arm ourselves against the enslavement of a tyrannical government, such as we are witnessing the beginnings of today.
That's absolutely correct. Made the hair on the back of my neck stand up.
Darrell Miller’s response to Professor Volokh was snippy but thankfully short.
So what if the Professor pointed out that the analogies in Miller’s statements were flawed. As an argumentative structure analogies have value but Miller’s presentation was, I believe, used for its shock value rather than because it would be an effective vehicle with which to present his case. His position was presented poorly. There is no correlation between the right to possess obscenity (pornography) and the right to possess a firearm. His analogy I interpret as a typical juvenile attempt at ‘creativity’, a desperate reach for notoriety, and nothing more.
Without the 2nd Amendment, there can be no free exercise of the 1st Amendment.
Compare and contrast with recent findings by a NJ court.
N.J. Court Says Americans Have No Right To Buy Handguns
http://www.cbsnews.com/blogs/2009/10/28/taking_liberties/entry5440647.shtml
Convoluted “thinking” by leftist judges.
How in the world are some weapons not protected? The only way they become illegal is when some greedy Socialist with too much time on their hands decides it should be illegal, and asks the Supreme Court to say so.
If they want to do it the right way, alter the Second Amendment. That’s the legal, constitutional way. But they don’t do things legally.
Garde la Foi, mes amis! Nous nous sommes les sauveurs de la République! Maintenant et Toujours!
(Keep the Faith, my friends! We are the saviors of the Republic! Now and Forever!)
LonePalm, le Républicain du verre cassé (The Broken Glass Republican)
Compare and contrast with recent findings by a NJ court.
N.J. Court Says Americans Have No Right To Buy Handguns.
Rather than a long amateur legal opinion that generates lengthy debate, I’ll simply state that the N.J. court is full of sh*t, as leftists almost always are.
Which of any other Constitutional Right has been held to not apply because a State Law is superior?
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