The View From Cambridge: Professor Fried on the Guns Case
This is the second in our 2-part series on the guns case from prominent professors at Harvard Law School. This op-ed was written by Charles Fried, a former US Solicitor General and teacher of current Solicitor General Paul Clement. Part 1 in this series, an op-ed by Professor Laurence Tribe, is here.
In 1992 I gave Paul Clement, then a third year law student at the Harvard Law School, now the Solicitor General of the United States, an A in my seminar on appellate advocacy. Based on his position in the District of Columbia gun case, he deserves that grade again—for skillful advocacy, to be sure, but for character and sound judgment as well.
The Second Amendment in its entirety reads “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.” In 1939 the Supreme Court said almost in passing that the amendment was no more than an endorsement by the new national government of the continued status of state civilian militias; it did not announce an individual right at all. There is a lively debate among constitutional scholars whether that Delphic sentence compels one or another of these readings. Unlike my colleague Laurence Tribe, I think that debate is at best a draw. And the historical debate about the “original meaning” of the amendment is wholly inconclusive and adorned with comical episodes like the conferral and subsequent withdrawal of the historians’ coveted Bancroft prize on work defending the pro-militia anti-individual rights interpretation.
The extreme interpretation, supported by among others the NRA and Vice-President Cheney, has it that the amendment not only enacts a right addressed to individuals—like the right to a jury trial in criminal cases—but also that the government may limit the right to keep and bear arms only for the most compelling reasons, those reasons being subject by the courts to what in constitutional law parlance is called strict scrutiny. That is the level of skeptical scrutiny to which the courts subject regulations of speech and religion or government impositions on individuals based on race—as in the infamous Japanese Exclusion case during the Second World War. The extreme interpretation—an entire novelty in federal jurisprudence—would invalidate or put in doubt hundreds of weapons bans and regulations and tens of thousands of criminal convictions across the country. It would, for instance, cast doubt on bans of the regulation of machine guns, sawed-off shot guns, automatic weapons, silencers, and “cop-killer” bullets. It would propel across the nation, already awash in weapons of every description, a tidal wave of lethal weaponry that with the return of sanity could hardly be reversed.
Clement’s legal argument agreed that the Second Amendment enacts an individual rights. But like other constitutional rights—most notably the prohibition in the unamended constitution on states “impairing the obligation of contracts”—Clement’s argument would allow that right to be subject to reasonable regulation. Indeed he went further towards the Cheney position: the courts must give such regulations “heightened scrutiny,” which means more than the cursory constitutional glance cast over economic and welfare regulations: there musty be a demonstrable justification in terms of public safety, a demonstration almost all fire-arm regulations can easily make.
Clement was in a difficult position. He was caught between a signal ideological commitment of some of his Administration’s most ardent supporters and his duty as Solicitor General to defend the many federal statutes that the extreme position would put in doubt. And perhaps he felt as well his duty to the public, whose interests in security particularly in an age of terror would be gravely compromised by a contrary ruling. Complicating his dilemma was a remark in an earlier brief by his predecessor endorsing the individual right (but not the “strict scrutiny”) interpretation of the Amendment. This is a tight spot that many of us who have preceded Clement in his office will recognize. He negotiated it with verve and integrity. How many in Clement’s charged political situation reverse the Gospel injunction to be “cunning as serpents and innocent as doves.” I am proud of my former student. A+.
Charles Fried, a professor at Harvard Law School, was Solicitor General in the second Reagan administration. His most recent book is Modern Liberty And the Limits of Government.
It is troublesome that the duty of the Solicitor General is to defend the many federal statutes, as misguided as they may be. What would have happened if the argument presented by Prof. Fried prevailed in the Gideon case? ‘Oh.. we can not have a decision like that as it would cast doubt to numerous federal regulations, its just too dificult, would cause too much trouble..’. If that was the case we would not have the right to a public defender when arrested (something that turned the day to day operations of the courts on their head). I think that line of reasoning is completely irrelevant. More relevant is the role of the Supreme Court to act as the vigilant gate keeper for legislation run amock and which potentially varies in position every 4 years (even within the same administration, as in this case, the shift from Ashcroft’s position to Clement’s position). Even more troublesome is that REGARDLESS of the position that the Supreme court might take, this case NEEDs to be decided by the Supreme Court, as there is an apparent split between the Federal Courts. For the Solicitor General to request that no decision be made and to remand the case to lower courts is incredibly irresponsible in my opinion.
Comment by Andrejs Vanags — March 17, 2008 @ 6:24 pm
The extreme interpretation, supported by among others the NRA and Vice-President Cheney, has it that the amendment not only enacts a right addressed to individuals—like the right to a jury trial in criminal cases—but also that the government may limit the right to keep and bear arms only for the most compelling reasons, those reasons being subject by the courts to what in constitutional law parlance is called strict scrutiny…The extreme interpretation—an entire novelty in federal jurisprudence—would invalidate or put in doubt hundreds of weapons bans and regulations and tens of thousands of criminal convictions across the country. It would, for instance, cast doubt on bans of the regulation of machine guns, sawed-off shot guns, automatic weapons, silencers, and “cop-killer” bullets. It would propel across the nation, already awash in weapons of every description, a tidal wave of lethal weaponry that with the return of sanity could hardly be reversed…there must be a demonstrable justification in terms of public safety, a demonstration almost all fire-arm regulations can easily make.
Extreme interpetation? If the American citizenry, having recently concluded a war fighting against British tyranny, was concerned that it must have the ability to fight against any new tyranny that might arise, it’s not too much to ask that the public have access to the weapons necessary to do so. And balancing tests only make sense when the concern to be balanced against is a concern unrelated to the right at hand, such as content-neutral time place and manner speech regulations. But if the second amendment guarantees an individual right to bare arms to protect the public in case of future tyranny, then it must include the right to possess weopans that have the potential to jeopardize public safety, and enable stealth and effective fighting, especially silencers and “cop-killer” ammunition. So it boggles the mind how one can say in the same breath that the amendment protects a right to self defense, which must mean a right to effective self-defense, but that it allows particularly effective means to be prohibited.
Comment by Jacob Berlove — March 17, 2008 @ 6:25 pm
Does Professor Fried violate FERPA by disclosing Clement’s grade?
Comment by John Q. Lawyer — March 17, 2008 @ 7:34 pm
The man is simply scared, as so many others are, that Pandora’s box is about to be opened. They believe the gun controlist’s scare tactics that the world will come to an end if even a few controls are lifted.
Regarding the machinegun ban, it wasn’t a total ban until 1984 when Kennedy had the law changed. Until then it wasn’t a ban but a regulation and licensing act through the commerce clause. In truth a modern challenge to it based on how it has changed since Miller would probably see it fall outside of the Miller ruling. Besides, again, the M-16 hasn’t had a full auto setting in 20 years and I doubt the court can see any rationality for people having a weapon the Army doesn’t allow its regular troops.
As for the other Federal laws such as the plastic pistol ban, the cop killer bullet ban, silencers, or even the ban on flash suppressors, the government has little to show for them. The dreaded all plastic pistol was a myth and the very real Glock is a mainstay arm of most police departments. Silencers are never really silent as long as the bullet is traveling at supersonic speed and the muzzle break/flash suppressors on military style rifles don’t prevent seeing the shooter in the dark; they keep the shooter from being distracted by his own muzzle blast. And as for Cop Killer bullets, until Police begin wearing Type 4 grade vests my 30-06 bolt action hunting rifle can kill them at 200 yards. Oh, and the Brady campaign’s statement that a Type 2A vest can stop a round from Dirty Harry’s 44 magnum; forget it, another myth.
Laws like the prohibition of sales to minors, or to interstate transfer without an FFL, or even the laws requiring a certain level of quality in the arms to prevent against the weapon exploding when fired, these will hardly be effected.
And as for criminal cases being put in jeopardy, if the only thing they have on the guy or gal is a weapons violation charge we truly are in trouble. Why are we so interested in increasing the charge against someone if they kill someone with a gun, then if they do it with a knife or other item. They have killed a person and the means shouldn’t be used as an excuse to increase one man’s penalty while lowering another’s. The same goes for robbery, rape, or assault; The means shouldn’t change the penalty.
Comment by James N. Gibson — March 17, 2008 @ 9:08 pm
Real balanced two-part series you’ve got here. Two obvious liberals, both apparently weak-kneed at the thought of an armed citizenry and all too willing to substitute emotion for reason. Really, quite a disappointment.
Comment by Munango-Keewati — March 17, 2008 @ 10:12 pm
Responding first to Charles Fried…
There is already “a tidal wave of lethal weaponry” in this country and the results are hardly catastrophic. The US civilian population owns a significant portion of the small arms extant in the world today. Despite this, our violent crime and suicide rates are on par with Western Europe (higher violent crime but far lower suicide) and several times lower than in Eastern Europe (see suicide and murder rates in Estonia and Russia for shocking examples). And obviously there aren’t third world levels of violence in this country despite the bloody content of the evening news. At the risk of sounding clever, if violence was at such epidemic levels, it wouldn’t be exciting news anymore.
This may come as a shock to Mr Fried, but this tidal wave of legally owed weaponry already includes many of the boogeyman weapons that he warns us would no longer be illegal (by the way, “cop killer bullets” don’t exist). Legal civilian ownership of tanks, rocket launchers, grenades, machine guns, silencers and sawed off shotguns has been an uncontroversial fact for many decades but they continue to remain unrepresented in criminal enterprise. Even though criminals have ready access to black market machine guns and high powered rifles, they almost universally opt for concealable weapons like handguns or short shotguns. Any guess as to how many of these criminals paid the 200 dollar tax on their hacksawed shotguns? It is unrealistic to expect criminals will follow complex tax regulations on these weapons any more than they will obey laws against killing or maiming their fellow citizens. Despite the efforts of gun control advocates to imply that these weapons are especially favored by criminals, decades of data shows that criminals are simply opting not to bother with these weapons. The only effect of such restrictions is to annoy the law abiding.
Finally, I challenge Mr Fried to show me these “hundreds of bans across the country”- there will be 1 remaining municipal jurisdiction (Chicago and Morton Grove, a suburb) with handgun bans and I believe 4 or 5 states with “assault weapon” bans (the only one being rigorously enforced is the CA one). The vast majority of “firearm regulations” in this country consist of either a) prohibited person laws that no one has even hinted would be unconstitutional under strict scrutiny and b) sentence enhancement laws for using certain weapons in crimes.These laws are uncontroversial in their constitutionality because no one is arguing that violent criminals have a right to bear weapons any more than they have a right to commit violent crimes. Such an argument is absurd, if not frivolous.
Strict scrutiny is appropriate because the fundamental right to self defense is meaningless without access to useful weaponry. The government should have to show that any restrictions it wishes to impose upon this most basic right serve a compelling government interest and are narrowly tailored to serving that interest. Anything less opens the door for wholesale extirpation of the right to self defense. And this is borne out in ever jurisdiction that has begun nibbling away at people’s rights to own weapons. Sooner or later the people are left defenseless in their homes for want of a weapon that meets the fickle tastes of the local authorities.
About the responding posts,
-there was no 84 ban. There was a 68 Gun Control Act and the 86 Firearm Owners Protection Act that included a ban on the sale of post-86 machine guns, but that is it for that timespan.
Comment by Jim Worsnoppp — March 17, 2008 @ 11:20 pm
Unlike either Tribe or Fried, I read the Second Amendment as silent on the possession or use of firearms for personal purposes. Jefferson had it right: The amendment was a provision for “the substitution of milita for a standing army.”
I give Tribe and Fried a lot of credit for making sense in expressing their concerns, however.
Comment by Leif Rakur — March 17, 2008 @ 11:21 pm
The rhetoric that has flooded out from the media the last few days has been amusing. I think they finally realized the mistake Fenty made by appealing. Too late now. Tribe and Fried definitely show a very elitist bent without regards to the reality of history.
Remember, private ownership of firearms was a direct reason that there was no mainland invasion of the US during WW2 by Japan.
One thing that is absolutely correct is that should SCOTUS rule for Heller, which I believe they will, the Hughes Amendment also known as the machine gun ban will be gone. Either SCOTUS will address it directly in their decision or the door will be opened to challange based upon this decision. Personally, I hope SCOTUS saves us time, tax payer money, and headaches by proactively declaring the ban unconstitutional.
Mike
Comment by Michael Saranos — March 18, 2008 @ 12:23 am
And as noted the California Assault Weapon ban will also be toast and good riddance. Because of that ban the CMP can’t hold any upper level competitions (which the ban wasn’t supposed to do). Under the 1999 version Winchester lever action rifles were banned due to a mistake in wording (slightly corrected in 2001). And though they have never repealed the State militia definition, under the terms of the original Assault Weapon law the militia is prohibited from using any banned armed even in defense of the State. So much for protecting access to arms of the militia.
Mr. Worsnoppp, sorry for the date mixup, I wasn’t sure of the year when the amendment was done. But since you brought up the 1968 Act, which is also mentioned in the SG Brief, how much of that law is still being enforced.
The ban on importation of surplus arms from Europe mostly ended with Reagan. Clinton was talked into imposing a ban on re-importation of Garands and Carbines in the late 1990s, but then he allowed the CMP to acquire the arms for sale through the CMP program to civilians.
The Saturday Night Special ban was a trade protection act just preventing importation of small handguns from Europe.
In addition the Assault weapon ban has also been allowed to expire and the Brady bill has been replaced by Insta-check. So what Federal legislation is the SG trying to protect.
Comment by James N. Gibson — March 18, 2008 @ 12:55 am
To Rafkur: in my opinion the 2nd amendment is clear on possesing and using arms (keep and bear), not silent.
Some have indicated that the presence of a preamble is to somehow constraint or limit the right, and thus make it a lesser right to undergo a less than strict review. I take the totally opposite view, that the preamble is there to highlight and elevate the importance of private possesion and use of arms, given that they are a Necessity for a free state. Thus the right to keep and bear arms should be accorded more importance, and proposed restrictions on this right should be reviewed under a stricter standard than the other enumerated rights. After all, you can’t have an effective militia without a body of people that possess arms and know how to use them, nor can you have a free state (as opposed to a police state) when the population has been disarmed. (and notice that ‘free state’ has nothing to do with the 50 states, it refers to the USA or other nations free of despotism, so the whole ’state militia’ argument is without founding in my opinion)
Comment by Andrejs Vanags — March 18, 2008 @ 1:57 am
“Unlike either Tribe or Fried, I read the Second Amendment as silent on the possession or use of firearms for personal purposes. Jefferson had it right: The amendment was a provision for “the substitution of milita for a standing army.” ”
(my non-scholarly reply below. I didn’t attend college, as I was too busy learnin’ stuff)
And did Jefferson believe that these arms would simply fall out of the blue sky and the militia men would have magically been versed in their use?
What about these militia men being able to eat before the militia being assembled? They didn’t have McDonald’s stagecoach drive thru’s back then, so I am fairly certain these families, specifically the men of the families, used their firearms for hunting to put food on the table. Which btw, IS practice exercise in proficient use of those firearms.
Comment by Fred Garvin — March 18, 2008 @ 7:21 am
I don’t think you could call Charles Fried an “obvious liberal.”
Comment by Bill Schwartz — March 18, 2008 @ 10:03 am
Prof. Fried fails to address what the Second Amendment DOES mean. Does it protect state militia laws from federal preemption? I doubt Prof. Fried has ever thought about it. If Respondent Heller, at age 66, is twenty-one years outside the federal statutory definition of militia, can D.C. or a state place him back under the protection of the amendment by state legislation? Or does Congress define, by statute, who has protection from Congress under a constitutional amendment?
Comment by J.N. Heath — March 18, 2008 @ 10:05 am
Cheney’s viewpoint is “extreme”? It’s the same level of scrutiny applied to the violations of every other Constitutionally-recognized right, such as freedom of speech, association, and right to due process, or governmental use of a suspect class to discriminate — I dare say those can easily be as harmful or more harmful. Lower levels of scrutiny are only used for cases where a constitutional right isn’t at hand : rational basis review for cases with no consitutionally-recognized right at hand, intermediate scrutiny usually saved for the permutation and emanations type of thing like sex-based discrimination.
Placing a right recognized by the constitution in a lower tier for yucks would be a radical viewpoint, and a potentially dangerous one — what right would you particularly like to have downgraded next?
I shouldn’t need to explain to well-educated men exactly how bad a formulation the phrase “cast doubt on bans of the regulation of machine guns, sawed-off shot guns, automatic weapons, silencers, and “cop-killer” bullets.” There are currently no federal bans on the ownership of machine guns, automatic weapons (defined by law as the same things), silencers, and ‘copkiller’ bullets, only registration in the case of the first three and a ban of a subgroup in the second case. State laws are not at significant risk from an unincorporated right. Thus, there are no bans to place doubts on, and ‘doubt’ is typically not used to describe a situation where the following aspect is supposedly going to be created.
I dunno if this
Comment by Gatt Suru — March 18, 2008 @ 10:16 am
This is the approached implied by the ABA’s brief, as well. I would give it an “F.” The implications of the argument undermine the whole Constitution and the notion of the gov’t’s limited power.
If SG/ABA approach made sense, then Plessy v Ferguson would still be good law. There was an elaborate system of segregated schools, etc.
If SG/ABA approach made sense, then all that Congress or the Executive need do to amend the Constitution is pass a lot of laws and then argue it is too late to repeal them.
The SG/ABA approach is, at best, beside the point. If the 2d Amend gives DC the power, then it has the power. If DC does not have the power, then the elaborate rules & statutes that contravene the 2d Amend only show how egregious the violation.
Finally, the SG/ABA approach is nothing more than thinking with feelings. Guns are dangerous, hence we should run with fright. So are cars & a host of other modern devices. As the empirical evidence clearly shows, to think that banning guns will do nothing but allow violent crime to increase is magical thinking at its worst.
Finally,the notion that people should be deprived of the right to defend themselves just because the Feds think they know better is just plain silly. It is, in fact, precisely what Madison sought to forbid with the 2d Amend.
In short, the SG & the ABA interpret the 2d Amend to mean what they want it to mean. What it actually says and what was clearly meant seem irrelevant. That is a frank usurpation of power reserved to the people. I sorta thought the duty of the SG was to vindicate the rights of the people. I guess I was wrong.
Comment by John Schedler — March 18, 2008 @ 10:31 am
“…there musty be a demonstrable justification in terms of public safety, a demonstration almost all fire-arm regulations can easily make.”
While I must defer to those actually schooled in the law on matters of law, I’m once again forced to ponder whether prolonged practice of the law results in mental damage. Shouldn’t a “demonstrable justification” require actual evidence drawn from real world experience, rather than simply a marginally plausible (at best) tale? Instead of real evidence, we’ve got a plethora of laws enacted on the basis of such baseless assumptions as that “assault weapons” were actually more powerful or capable of more rapid fire than traditional semi-automatic hunting rifles, a premise that is unquestionably false. We have bans on some .50 caliber rifles justified by the purported ability of these rifles to shoot down airliners, again a patently ridiculous assertion. We have the District of Columbia arguing that its ban is justified by its ability to prevent violent crime, something that was on the decline when it was passed but has increased dramatically ever since its enactment. If we were to fall for this sort of fairy tale as justification for a limitation on individual rights, it would seem equally likely that we might accept arguments that a dangerous number of those Japanese Americans might well have been enemy agents, that Black men might well be genetically predisposed to rape White women, or even that the empirically verifiable tendency of discretionary firearms licensing schemes to be applied disproportionately against women and minorities is simply a fluke.
Comment by Ken Maurer — March 18, 2008 @ 10:31 am
I. Stare Decisis
The principle, so conveniently forgotten, of stare decisis – let the decision rest – mandates that the Supreme Court acknowledge the precedential effect of its past decisions. In 1939, the Supreme Court issued a definitive interpretation of the Second Amendment in United States v. Miller. The Court found that the Amendment did not encompass an individual right to bear arms, or at a minimum that any individual right to bear arms is inextricably intertwined with the common defense. The ruling contradicts a strict individual rights approach to controversy surrounding the Second Amendment. The Court should respect the reliance of individuals, states, and the federal government on that interpretation.
II. Historical
A. The historical arguments (such as in Post #2 by Mr. Berlove) placing the Second Amendment within the backdrop of “British tyranny” are off the mark. One of the precipitating events for the Constitutional Convention was Shays’ Rebellion, in which a group of farmers protesting taxes attacked a Federal Armory in western Massachussets. The lack of a unified response from the federal government led many founding fathers to conclude that the Articles of Confederation were too weak to function properly. Thus, the framers of the Constitution were well aware of the disproportionate havoc that a few disgruntled citizens with firearms can cause.
B. Even supposing that the Second Amendment contemplates an individual right to bear arms, would the Framers have viewed it as granting individuals an unmitigated right to possess machine guns, “cop killer” bullets, and other weapons designed for destruction (and not for self defense or personal protection)? Based on the technology that was available in 1789, absolutely not.
III. Policy
A. Based on an originalist interpretation of the Constitution, policy arguments should not even come into this debate, but they seem to be the bulk of the popular discussion and provide insight as to the possible practical effects of the Supreme Court’s ruling in this case. First, the individual right to legally possess a weapon that can end a human life with such ease will often infringe upon anothers’ right to life. As John Stuart Mill has noted, the government can place increasing limitations on individual rights in situations where the exercise of those rights affect another individual. Guns are dangerous and deadly, and there is a compelling state interest in limiting their availability. The news is replete with examples of the destruction to human life that guns can and do cause – would the killers of Eve Carson, the UNC student body president, have had the courage to end her life in any but the most cowardly way?
B. I suspect that the men participating in this debate think, “I should have an unadulterated right to possess a handgun. I wouldn’t abuse that right. I deserve the right to possess a handgun because I need it to defend my country.” But what about everyone else? What are the consequences for society as a whole? And let’s be honest, which one of you is using your guns “to protect the public in case of future tyranny”?
Comment by Sarah Klein — March 18, 2008 @ 11:43 am
“So are cars & a host of other modern devices.”
True. However, cars, unlike guns, serve a purpose other than killing things. Guns are designed with an exclusive purpose: killing.
I do believe that D.C. advocates have placed themselves in an untenable position. It is difficult to buy the idea that the high rate of handgun violence justifies banning handguns. After all, if the ban worked, you wouldn’t have such a high rate of handgun violence.
That being the case, I don’t see how the SCOTUS can buy the argument that the ban is necessary to achieve a compelling state interest. Hence, I think the District is in real trouble should SCOTUS rule that owning a gun is a fundamental right.
Comment by Eric Hudson — March 18, 2008 @ 12:59 pm
“I suspect that the men participating in this debate think, ‘I should have an unadulterated right to possess a handgun. I wouldn’t abuse that right. I deserve the right to possess a handgun because I need it to defend my country.’ But what about everyone else? What are the consequences for society as a whole? And let’s be honest, which one of you is using your guns “to protect the public in case of future tyranny”?”
There you go again — thinking with your feelings. You recoil in horror at individual incidents and then assume without evidence that the instrumentality is the problem. The overwhelming empirical evidence is that taking away guns in fact makes society more dangerous, not less. The Framers understood this.
My favorite real-life experiment is the UK. 30 years ago, posssesion of handguns was more common in England that the US. The police were not armed because they didn’t need to be. Guns were then banned. Now police are armed and the incidence of violent crime is up by a large portion. One vast increase that may affect your feelings is that burglary where the owners are still in the house is up by 600% +/-. The burglar is armed but the homeowner is not. The “consequences for society as a whole” are grim when firearms are banned.
“Guns are dangerous and deadly, and there is a compelling state interest in limiting their availability.”
This is a non sequitur and the 2d Amendment says you are mistaken. Indeed, the purpose of the 2d Amendment was to prevent just this sort of emotional thinking from becoming policy.
Comment by John Schedler — March 18, 2008 @ 2:25 pm
I agree with Jacob Berlove that the right to “bare arms” must not be limited in any fashion, particulary among the attractive young ladies in the country. However, regarding the right to “bear arms”, Berlove seems to think that would extend to tactical nuclear weapons, as these are required to fight a successful war today. I would hate to have that be the case, with the state of terrosim these days. But fine, so be it – only the most deadly weapons should be allowed, as these are the ones that will win wars. Meanwhile we can ban handguns, which have allowed criminals to kill tens of thousands of innocent civilians. A lot more than 9-11, and yet I bet Berlove is all for wire tapping and other loss of individual rights that has led to.
Comment by Whitney Pope — March 18, 2008 @ 3:52 pm
I find it amazing that there is such fear of law abiding citizens.
I wonder why I was allowed to carry arms during my military service or control nuclear weapons, yet my possession of arms of my choosing is such a disaster in civilian life? I’m left wondering why police are not a standing army?
I’m surprised I’m allowed to exist in society after being tainted by war?
I am simply amazed that the response to criminal activity is to deny law-abiding citizens their rights for the acts of criminals?
I left wondering what the real motivation must be.
I wonder if the good professor in understands the meaning of the words “shall not be infringed”?
I wonder if the words of the preamble of the U.S. Constitution, “.. and secure the Blessings of Liberty to ourselves and our Posterity” has any meaning any more.
Neither the government at any level, nor police will accept legal responsibility of my safety, while securing it for themselves, yet they are all ready to deny me the right to protect myself and my family in the manner of my choosing?
What arrogance!
Comment by Bruce Hutfless — March 18, 2008 @ 5:54 pm
Let’s do away with the novelty of the 1st Amendment; I look forward to not having to listen to moronic blowhards like this Harvard professor who don’t know how to diagram a sentence. Go back and learn grammar-school grammar.
Comment by Jeremy Brown — March 18, 2008 @ 7:19 pm
Sarah Klein states “The principle, so conveniently forgotten, of stare decisis – let the decision rest,” leaves out one very important distinction. That is simply that the whole principle itself is a creation of the Court itself.
The Court can at any time abandon the entire principle and even rule all precident as inadmissible. Nowhere is the concept to be found in the Constitution at all.
Further, the Supreme Court’s decisions bind lower courts, but not the Supreme Court itself. It can overturn any previous ruling it desires at any time.
I see quite a bit of discussion here regarding Constitutional law as something that is merely a guideline, or quaint relic from the past. It isn’t. Actually, it is the law, and more powerful than any legislative statute, court ruling, or executive action.
It’s one thing to debate the desirability of eliminating or modifying various provisions of the Constitution, and another to try to ignore and violate them by simple non-application.
Indeed, that is criminal behavior in and of itself. There is a way to change any part of the law, and that is via the amendment process.
Unless a new amendment is passed changing, increasing, or reducing the right enumerated in an Amendment, it stands as written.
Comment by John Mazza — March 18, 2008 @ 9:49 pm
Saying that the only purpose of a gun is to kill is false.
That’s like saying that the only purpose of a car is to burn fuel. The purpose of a car is to provide transportation; in doing so, it may burn fuel, but that is not its purpose. And an ideal car would provide transportation without burning any fuel at all.
In the same way, the purpose of a gun is NOT to kill; the purpose of a gun is to provide security. In providing that security, it may kill, but that is not its primary purpose. And the ideal gun would provide security without killing anyone at all.
Comment by Turk Turon — March 19, 2008 @ 1:05 pm
My understanding is that every prior Supreme Court decision, as well as discussions in dissents of other opinions support the individual right to bear arms (yes, I read Miller to say it supports an individual’s right to bear arms). Therefore I agree with Sarah Klein’s statement that ’stare decisis’ should prevail, but I reach the opposite conclusion, that a clear statement of the individual right to possess and use firearms should be made by the Supreme Court.
Comment by Andrejs Vanags — March 19, 2008 @ 1:27 pm
Sarah,
I’m intrigued at your interpretation of the Miller finding. The courts finding was,
“In the absence of any evidence tending to show that possession or use of a ’shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
Short barreled shotguns were commonly used in military service at the time, but since Miller’s council was not present at the hearing the opportunity such evidence was never presented. Since it is easily proven that such weapons were in common use, should the SCOTUS now – with the express knowledge that such weapons were and are commonly used by the military / militia – use principle of Stare Decisis to expand on the Miller precidence and find short barreled shotguns and machine guns within the class of Arms protected by the 2nd Amendment?
I presume you know the answer but don’t like the result.
Comment by Bryan Manka — March 19, 2008 @ 1:41 pm
Actually the shotgun was not commonly used by the military in 1938-39. Very few were actually used in combat in world War 1, the majority were carried by military Police given it was a Police riot gun. Estimates are only 19,600 were actually procured compared to the one million plus bolt action rifles used by American forces. After the war they were used by military prison guards and to guard US mail shipments. Its like the Thompson which also came into existence in WW1 but saw only limited service prior to WW2. Both were carried by special units within the military and only for specific duties. The average soldier carried a bolt action rifle until 1940, two years after Miller.
Its only gun control historians that now say the sawed-off shotgun was in common use by the military in 1938. Its like Breyers comment that under the 1792 militia Act pistols were reserved to the officers. Thats modernisum creeping in, the 1792 Act actually required the officers to carry a sword. Pistols are only mentioned in the Act in regards to the cavalry units of the militia and pistols were to be carried by all cavalry members regardless of rank in the unit.
Comment by James N. Gibson — March 19, 2008 @ 2:23 pm
One more comment regarding the sawed-off shotgun. Under federal law (the law Miller is defending) to officially be a sawed-off shotgun the barrel length must be less then 18 inches and or an overall length less then 26 inches. All the shotguns used in by the military in WW1, WW2 and in present service have 20 inch barrels and full stocks. Thus, legally these military shotguns are not sawed-off shotguns and Miller doesn’t apply.
Comment by James N. Gibson — March 19, 2008 @ 2:46 pm
Short barreled shotguns have been used by police, military, and other US Governmental agencies for over 100 years, they are in current use by all the above, plus they are legal own as civilians if you are willing to pay a $200 tax to the BATF. What percentage they make up of the general population of firearms is irrelevant.
Comment by Bryan Manka — March 19, 2008 @ 5:53 pm
If you want to be technical, the shotgun was used over two hundred years ago in the Revolution because of general need. Under the 1792 militia Act it was prohibited for militia duty. Instead everyone was to use a smoothbore musket and fire Buck and Ball which was a combo round.
However you missed the point, only shotguns with barrels under 18 inches are classified as a sawed-off shotgun, and none of the military ones are. And if the defined weapon is not being used by the military it has no reasonable relationship to the preservation or efficiency of a well regulated militia
Comment by James N. Gibson — March 19, 2008 @ 6:45 pm
My grandfather fought in WW1 (5th Marines). He told me short-barreled shotguns were in common use. It is the most useful weapon for close combat in narrow trenches. The Remington pump, by the way.
In WW2 my uncle (7th Marines) told me they often shortened the barrel and action of the still ubiquitous Remington pump because it the weapon of choice in the jungle.
The absence of procurement of shotguns probably says more about how many were already in stock than anything else. I was a grunt in Vietnam (26th Marines). M1911A1 (Browning .45 cal auto)pistols were ubiquitous, but you wouldn’t know that by procurement records. The Corps had not procured a new .45 since 1945. That was till true in 1981 when I left the reserves (4th Shore Party Bn).
More to the point, shotguns with shortened barrels were ubiquitous in the RVN. (The same Remington pump.) They were and are vastly superior to the M-16A1 in the jungle and close combat. That goes double for combat in buildings. I say this from experience up close and personal.
So, the short-barreled shotgun had considerable military utility in 1917, 1939 (Miller), 1968 and so it remains to this day.
Finally, vis a vis the “purpose” of a gun, I am reminded of a comment my grandfather & father often made to my brothers and I: “Never blame a tool for your own mistakes.” Guns are tools. What counts is how the tools are used.
Blaming a tool is a form of thinking with feelings. It never solves anything.
Comment by John Schedler — March 19, 2008 @ 8:01 pm
“Extremist interpretation” is a rather harsh sounding judgment. It belies a foregone conclusion, a prefabricated position. I’d like to hear him argue why the position of the NRA, which represents millions of “the people”, is extreme? I’m an NRA member, now I am an extremist? And this guy is on my side?
He gave the SG an A+ because he did his job. Remember, he works for the government so his duty is to look out for the government. What? You say the government is supposed to be looking out for the people? The people? Who?
Post 17, I have a lot of issues here. I notice that the further away from reality one is, the more technical they attempt to parlay their position!:
“Stare Decisis”? OK, look at past decisions and their justifications, yes, but rely on them? No. If that were the case then you, my dear, would not have the right to vote, and we would not have the right to discuss this over a beer.
Point 2, the historical argument – Shays’ rebellion bad, Boston Tea Party good. By that argument, rebellion bad, and we’d still be British subjects. Sorry, not buying it.
Policy argument – you’re pontificating. You rely on a corrupt media to make your case? If that’s all you have then you have less than nothing. By your argument a criminal has more right to kill me and my family than I do to kill him or her for trying. What if it was your family? Are you willing to sacrifice their lives to prove your dishonest, politically driven point of view?
Post 21 – Amen, and simper fi
Comment by Curtis Oakes — March 25, 2008 @ 2:48 am