Analysis: History’s lessons on gun rights
Analysis
When history is pressed through filters of legal advocacy, what comes out may be very different, depending, of course, upon the filter used. The Constitution’s Second Amendment — the one that guarantees “a right to keep and bear arms” — has a history that has been examined exhaustively for generations, and the disagreements over how to read it have gone on unendingly. Now, opposite sides in the Supreme Court case testing the scope and meaning of that Amendment — the case that comes up for argument next Tuesday morning — have taken their turn at reading the history as a matter of legal advocacy. Not unexpectedly, James Madison, the primary architect of the Amendment, is caught in the middle. And that is but an illustration of the history — the histories — that have been laid before the Justices.
When a convention met in Virginia to consider ratifying the proposed Constitution, Madison was a delegate. When some delegates said a new national convention should be called to change the document, a committee on which Madison sat tried to head off that maneuver by offering a list of 40 changes that would be passed along to the First Congress to consider. One contained the words “the people have a right to keep and bear arms” as well as these words: “a well regulated militia…trained to arms is the proper, natural and safe defence of a free state.” Another proposed that anyone with religious objections to “bearing arms” should be allowed to pay someone else “to bear arms in his stead.”
When Madison, in the First Congress, sat down to draft what would become the Second Amendment, his draft was to combine all of those words and phrases into a composite: “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.”
In the end, these are the words that wound up in the Amendment: “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.”
What does that history show? To the District of Columbia government and its mayor, that sequence shows that the Amendment had a military-only focus. Its brief argues: “Reading the text of the Second Amendment as a unified whole to protect only militia-related firearm rights reflects the concerns expressed by the Framers from the time of the Consitutional Convention through adoption of the Amendment by the First Congress.” The brief goes on to examine some history from the deliberations in the First Congress, suggesting that “Madison’s draft was revised to make the Amendment’s exclusively military focus even clearer.”
But, starting from some of the same historical bases, a group named Academics for the Second Amendment (law professors who set up their group in 1992 to advocate an individual rights interpretation) comes out differently. It agrees that Madison crafted his initial proposal primarily from the work of the Virginia ratifying convention’s committee. The proposal to have a right to keep and bear arms and to recognize a militia as a key to defense, the Academics say, was intended to embrace a concept of “essential and inalienable rights of the people.” Another set of the Virginia proposals discussed distribution of government power for dealing with military needs, not rights. Madison, the Academics contend, wrote his draft from the rights proposals, not the distribution of power. They go on to address activity in the First Congress, noting that the Senate voted down a proposal to add the military needs idea to the Constitution — language that, they note, Madison left out of his draft.
The technique of advocacy in each case — and this is typical of the other historical ruminations put before the Court — is to examine history with some selectivity rather than comprehensively. Note, in the example about Madison’s choices, that some parts of the history are the same, but others are not, yet each points to a conclusion supporting that side’s core argument. That, of course, is more the method of those with legal skills than those trained in history’s disciplines.
Another example comes in the two sides’ review of the English history that lies behind the Second Amendment, and the issue at stake before the Court. Going back to the Glorious Revolution of 1688 and its early aftermath, each side sees its perceptions validated by the English Bill of Rights accepted by William and Mary. Article VII guaranteed Protestants that they would have “arms for their defense suitable to their condition and as allowed by law.”
A group of 15 constitutional historians, supporting the District of Columbia, reads that provision as a specific response to the need to safeguard the Protestant population and all of England from a restoration of Catholicism. Moreover, their brief goes on, Article VII was only a part of a larger movement to vindicate the supremacy of Parliament. The historians sum up: “The liberty Englishmen cherished would be secured by confirming that a Parliament respectful of their rights and representative of society would have sovereign authority to make law. Article VII endorsed the idea that well-to-do Protestants might keep arms against the threat of a Catholic restoration, but as the formula ‘according to law’ made clear, this imposed no limit on the reach of parliamentary power.”
On the other side, Joyce Lee Malcolm, a professor of legal history at George Mason Law School and the author of two books on the English right to arms, goes back to the same English history in a joint brief she filed with the Cato Institute. Citing the same language of Article VII of the English Bill, the professor and Cato say: “This article set out a personal right.” It was part of a list of rights that accompanied 12 indictments against King James II, including one indictment that accused him of disarming Protestants. The brief adds: “Neither the article nor the indictment tied having arms to militia service, which the Declaration nowhere mentioned.” The brief sums up that “by the Second Amendment’s adoption, Americans had inherited a broadly applicable and robust individual right that had been settled for at least fifty years. This right of course had limits, but they did not intrude on the core right to keep firearms to defend home and family: They confirmed it.”
Much of the disagreement in the legal briefs in the D.C. gun case focuses on the impact that guns, and, alternatively, the impact that gun control laws, have on racial and other minorities. Again, history is brought to bear to support the conclusions stated in the two sides’ conflicting briefs.
For example, the NAACP Legal Defense Fund notes one historian’s argument that a function of the “well regulated militia” of the Second Amendment was used during colonial times and afterward to help maintain slavery and suppress slave rebellion. And it argues that the Black Codes of the post-Civil War Reconstruction era should not be confused with modern attempts to control gun laws. Those Codes, it says, were blatantly discriminatory, but there is no proof of that in the D.C. gun ban’s history. By contrast, the Congress of Racial Equality, in a lengthy excursion into the history of the Black Codes of Reconstruction days, notes that those provisions “often prohibited the purchase or possession of firearms” by freed slaves. It cites an 1867 report of the Anti-Slavery Conference concluding that blacks were “forbidden to own or bear firearms, and thus were rendered defenseless against assaults.” (One of the authors of the CORE brief is law professor Robert Cottroll of George Washington University — who also is cited as one of the authorities in the brief of the NAACP LDF.)
On another level, there is strong disagreement, from a number of former U.S. attorneys general and other ex-officials in the Justice Department top echelon, about what that Department’s history says about the nature of the Second Amendment. One group, led by former Attorneys General Janet Reno and Nicholas Katzenbach, stresses the decades during which their Department supported the view that the Amendment did not embrace a private, individual right — and notes that the Department put that argument before the Supreme Court when it last examined the Amendment’s meaning: U.S. v. Miller, in 1939 (which, they recall, was “the first and only Second Amendment challenge to federal firearms legislation resolved by this Court”). But a different group, led by former Attorneys General Edwin Meese and William P. Barr, conclude that the Department’s history on the subject did not “provide well-reasoned, or even consistent, support” for the view that the Amendment does not protect an individual right. And they counter the other ex-officials’ citation to the U.S. brief in the Miller case by noting that the argument picked out in the other brief was only an argument alternative to others that were consistent with an individual rights view.
Perhaps it was inevitable: the notion that silence speaks also comes into arguments about what history has to say (or not). Eighteen Democratic members of Congress, for example, cite the Supreme Court’s “decades-long silence” in addressing the meaning of the Second Amendment as a reason for the Court now to pay more attention to what Congress was doing during that time: passing many laws to impose gun control without fretting over the Second Amendment. But, countering that argument, Vice President Cheney and a majority of the current members of the House and Senate examine that period of congressional activity and find in it repeated instances of legislative comments supporting the individual rights theory, including “a scholarly report” by a Senate subcommittee in 1968 saying that what the Amendment protects “is an individual right of a private citizen to own and carry firearms in a peaceful manner.” And, in its own suggestion of eloquence in silence, that brief recites references to an individual rights theory in pending bills that Congress has not enacted.
And yet a different approach is textual in nature. Regardless of the history behind the words, the 2A says what it says. A common sense approach, not twisted by Noam Chomsky grammatics, supports a individual right to bear arms.
Comment by Daniel Thomas — March 14, 2008 @ 11:35 pm
“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.”
What was the difference between a comma and a semicolon? None, right? Each statement was independent of the other - - place it before, or after, orremove it entirely and the other statement could stand independently. That was the grammar school teaching, wasn’t it?
Three rights became two rights. One is a right of the individual.
IMHO,
Barry
Comment by Barry J. Baker Sipe — March 15, 2008 @ 9:43 am
It took this case to teach me the rule of the ablative absolute. I agree it has significant meaning here.
Comment by Victor R. Stull — March 15, 2008 @ 12:09 pm
Consider the logic behind the competing arguments.
DC proposes an individual right which is exclusively for the common defense relating only to those persons actively serving in a well-regulated militia.
Heller argues for a right to keep and bear arms which encompasses both an individual right to self defense and a right to contribute to the common defense as needed/able.
There is lots of evidence which supports the “common defense” argument, but none that supports an EXCLUSIVELY common defense argument in which ONLY those in a well-regulated militia would have the right to keep and bear arms. The DC side can not produce a single citation from the founding era to that effect, nor do any of the early state supreme court cases support such a narrow interpretation. Even Aymette v. Tenn. said the right belonged to “every” free white male, not merely those in the active duty state militia. And that court made a point in showing that the right to keep arms was broader in the Tenn. const. than the “right of protestants…” known from England.
However there is plenty of evidence supporting an individual right to keep arms for self defense being protected by the right to keep and bear arms. See Bliss, Nunn, and other early state court cases as well as evidence (including many founding era statements regarding and individual right o bear arms for self-defense) laid out in the Heller brief and amici.
When one considers all the available evidence and considers the positions staked out, logic tells us the interpretation which requires exclusivity must be rejected as there is no evidence which directly supports the narrow claim, while there is much evidence directly contradicting that claim. (Note that even the duty to keep and bear arms was wider than the narrow right of active duty militiamen proposed by DC)
As a logic problem, the answer is straight forward. Heller does not have to define the exact scope of the right in order to prevail, he merely has to show that the exclusivity/narrowness of the DC position is not tenable.
One side says “Only A”
other side says “A and B”
No evidence directly supporting “only A”
Very much supporting A
Much supporting B (negation of only A)
To prevail, the “A and B” argument does not have to show to what extent A and to what extent B, it just has to show that “only A” is negated.
Comment by Mike Hansberry — March 15, 2008 @ 1:16 pm
Original intent would seem to argue that Heller can have all the muskets he can carry. It’s the uzis that are the problem. Arms meant muzzle loaders, originally. both sides can be correct if the intertemporal meaning of arms is used not the moder n meaning. If original intent applies to the “words” it applies to what the “words” apply to. It’s not about “words” anyway its about what they meant at the time. Any other “argument” is hypocritical.
Comment by steve laudig — March 15, 2008 @ 1:36 pm
The meaning of the second ammendment has always been clear to me. All of the semantic parsing and posturing by the gun control goups (aka “the Brady bunch”)is not intellectually honest and engenders even more distrust between the government and the people.
It seems the biggest concern is how far the Supreme Court will go. If it is affirmed an individual right (and I believe it will) then states and municipalities with stringent gun control laws will (passionately) cry that there will be blood in the streets. A look at all of the states with “Shall Issue” language have enjoyed falling crime rates. Florida is probably the best case in point.
They are only worried that their “control” will be lessened over the law abiding citizenry.
Comment by Paul Lorek — March 15, 2008 @ 9:31 pm
1. If, as DC contends, the First Continental Congress intended to protect only the right of a militia to “keep and bear arms” then exactly when did the prosecution of citizens not in a “militia” (read in DC terms, military) and the confiscation of firearms not under the control of a “militia” commence?
2. Why would men that just took part in a revolution to separate themselves from a non-responsive government, succeeding predominately because the private citizen was able to supply the lions share of weaponry, then act to restrict the very source from which success sprang?
3. What is the common definition of the word ‘militia’ during 1776-1782? As my faded memory recollects, it was a non-regulated, irregularly uniformed, untrained group of citizens.
4. If the First Continental Congress had indeed intended the 2nd amendment to apply only to the military, that word would have been chosen, as it was a common and often used word with a specific meaning at that time.
Comment by Dan Andrews — March 15, 2008 @ 9:52 pm
I like your comment of pressing history through the filters. Another way of saying this is, history written to suit the funder. And much of the history presented to support the collective rights, or now militia rights, view was paid for by the Joyce Foundation.
You mentioned the Academics for the Second Amendment (formed in 1991) but did not mention several of the 15 historians you cited are connected to the Second Amendment Research Center (2003). The several signatories to the Brief were in the 2000 symposium on the 2nd amendment that was used to add credibility to “Arming America.” Within three years the book had been completely discredited, torn apart by the majority of the historical community in the US, Canada, and England.
Yet though the book was discredited the documents written based on it for the symposium are still cited as evidence in the Briefs supporting the city’s position. Most of these historians still argue that gun ownership in early America was small. Example, at the end of their Brief these historians said this.”This brief takes no position on how well armed Americans were, something historians are still trying to gauge.” They know that there was no dispute before Bellesiles. And they know that without Bellesiles their version of the English Bill of Rights doesn’t hold. If gun ownership was widespread, and as Jefferson put it in a letter that a gun was one of the first necessaries of a farm house, how can gun ownership in early American be linked only to militia service.
At least Michael Dorf is more honest. After submitting a history for the 2000 symposium, his only appearance in this is as legal council in the AJC Brief.
Comment by James N. Gibson — March 15, 2008 @ 10:13 pm
See the February 18th History News Network article severely critical of the historical amicus brief filed by the fifteen academic historians supporting Washington D.C.’s handgun ban. Their brief contains obvious historical errors and expresses views that are directly contrary to those of the primary Framers of the Second Amendment, George Mason and James Madison.
The direct link to the HNN article is: http://hnn.us/articles/47238.html
For critical historical commentary on other amicus briefs supporting Washington DC in the Heller case, go to http://www.secondamendmentinfo.com/DCvHeller/index.html
Comment by David E. Young — March 16, 2008 @ 1:02 am
it seems to me the issue is simple. people don’t get the point of the bill of rights. the 1st ten amendments didn’t grant ANY new rights. None. All those rights were already there. All the Bill of Rights did was further clarify the inability of the federal govt to have power over them.
IOW, before the Bill of Rights in say 1790, the govt couldn’t abridge the freedom of speech or religion, it wasn’t granted the power. All the Bill of Rights did was make that point crystal clear because the anti-federalists wouldn’t take the federalists; word for it during ratification. They wanted it in writing. Madison and Hamilton said that it wasn’t necessary, that the impotence of the govt was obvious. But for political reasons and to help in ratifcation, they agreed to pass a Bill of Rights to mollify the Patrick Henry’s and George Mason’s of the world. You can read the Federalist papers and debates of the era, it’s all there.
So what does this have to do with the 2nd A and Heller? Easy. The case is a dispute over two rights. The right of the militia(a collective/state right), and the right of the individual.
Now, since we’ve established that the Bill of Rights and thus the 2nd A DID NOT create or grant any new rights but only made explicit what was already an implicit limit on federal power(s) we’ve also established the following:
Both of the above rights existed prior to the 2nd amendment and the 2nd A did nothing to change their existence.
The only question is what limits did the 2nd A place on federal power over those 2 distinct rights?
I think the evidence is pretty overwhelming and persuasive from a historical, textual, logical and legal basis that it clarified the limit on the govt over the individual right. But let’s say I’m wrong. Let’s say the 2nd A WAS about the collective/state right. That still leaves the individual right in existence. And there is NOTHING in the rest of the Constitution that gives the fed govt power over it in any way whatsoever. Again the govt only has the powers granted to it. It is a govt of limited powers. Read Madison and the 10th amendment, it’s pretty straightforward.
The basic point is that prior to the 2nd A, the fed govt had no authority to legislate over the individual right. The Bill of Rights didn’t add to govt authority, it more explicitly REDUCED it. So if there was no power over it before the 2nd, there can’t be any power over it after the 2nd.
The whole issue is pretty simple, as are most con law issues, once you understand the proper perspective of looking at the constitution and the Bill of Rights and the proper role of govt and hwo the govt gets its powers in our constitutional system. The govt ONLY has those powers granted to it by the Constitution. It has no other source of authority.
The 1st question that should always be asked in any Supreme Court case is: What is the basis for the govt’s exercise of power in this instance? What part of the Constitution granted said power to the govt?
In the 2nd A context, ther is clearly no grant of power over an individual right to bear arms. Case Closed.
Likewise, in the Fed Partial Birth Abortion case, there’s no source of power. The ban should have been struck on commerce clause grounds and Justices Thomas and Scalia strongly intimated they would have done so had the issue been raised.
Once you look at it in the rigth way, everything falls into place
Comment by rufus peckham — March 16, 2008 @ 3:11 am
Re. Comment #1: The linguistics brief filed in this case is not an exercise in Chomskian grammar. It’s an almost theory-neutral argument based on concepts and methods that nearly all linguists would accept. I personally disagree with its conclusions, but not because it’s based on “Noam Chomsky grammatics” (whatever grammatics may be).
Thanks, Lyle, for this thoughtful post.
Comment by Joshua Jensen — March 16, 2008 @ 8:50 am
I think the Heller case will be remembered as the climax of originalism. Why are we spending so much time trying to parse the grammar, history and political thought of the 18th century and their earlier foreshadowings? Why should the perceptions of a frontier society whose technology admitted of no cannon with as much force as a modern-day rifle be controlling in today’s urban culture?
Not all of the ideas in the Constitution have proven to be winners. Putting aside the obvious compromises, like the 3/5 count for slaves and the electoral college, some portions have clearly been overtaken by time. Direct taxation, letters of marque and reprisal, and tax bills originating in the House are examples. The civic duties of the yeoman militia, hue and cry, and bucket brigade have been supplanted by standing armies, police forces, and emergency response units. The growth of manufacturing, transportation, finance, national and international commerce, and the mere size of the nation have upended the original relationship between the states and the federal government (the antiquarian notions and scattered victories of the Reaganauts notwithstanding).
So why is it to these sources that we look? Partly this is because we lack, or have no hope of achieving, unifying principles of the scope attempted by that small, homogenous band of rationalists. Even smaller goals, such as securing “the just, speedy, and inexpensive determination” of lawsuits, seem to escape us. About the only thing we agree on is that the business of America is business.
The unwieldy, corruptable mechanism of legislation and appropriation bequeathed to us by the founders, and the self-aggrandizing nature of the executive, have caused us to look to the judiciary to establish the intermediate term, intermediate scope principles which organize our lives. It is the search for a limiting principle for this power that periodically causes us to make a radical examination of legitimacy, which in this incarnation has taken the form of originalism.
The Court is an arm of governmental power, of federal power in particular, and cannot be expected to surrender the governmental monopoly over the legitimate use of force. The 2A will be found to support neither an individual nor a collective right, but a sovereign right, an allocation of power between the state and federal governments. The scope of regulation is just an application of police power precedents. But originalism will be revealed as not being a limiting principle at all.
Comment by Roger Friedman — March 16, 2008 @ 11:21 am
ablative.
Barry
Comment by Barry J. Baker Sipe — March 16, 2008 @ 11:54 am
AMENDMENT II
A well regulated Militia, being necessary to the security of a free state, the right of the right of the people to keep and bear Arms, shall not be infringed.
1) A well regulated Militia, being necessary to the security of a free state, … shall not be infringed.
and
2) . . . the right of the right of the people to keep and bear Arms, being necessary to the security of a free state, shall not be infringed.
The common denominator is both are necessary to a free state of man.
Barry
Comment by Barry J. Baker Sipe — March 16, 2008 @ 1:03 pm
It is abundantly clear that in a Republican form of government, ultimate Sovereign power and authority resides in the hands of the people, who exercise their individual sovereign authority through the exercise of their vote to elect a representative form of government with delegated powers. The ultimate responsibility to preserve, protect and defend freedom, liberty, and the pursuit of happines rests in the hands of the citizens of the the nation, who have realized that in the final analysis liberty and freedom can only be preserved through three boxes: the ballot box; the jury box; and the cartridge box. As an unorganized militia cannot be ordered to lay down their arms; they cannot be ordered to retreat; and they certainly cannot be ordered to surrender. However, under a commander-in-chief in an organized militia, they can be ordered to lay down arms, surrender and retreat, in light of a court martial and death penalty for disobedience of orders and treason.
Comment by George Young — March 16, 2008 @ 1:32 pm
Roger Friedman: “…a frontier society whose technology admitted of no cannon with as much force as a modern-day rifle…”
Huh? Perhaps you could name the rifle that has the power of a Revolutionary era cannon.
Without “originalism,” all we have is nine elders making all the rules. The Constitution was written down for a purpose.
Comment by Munango-Keewati — March 16, 2008 @ 5:08 pm
The Sovereign Power resides within the people as a whole, not fleshing out the equel sharing of power between the Federal and State entities. We the people have the right to refresh the Tree of Liberity from time to time with blood of Tyrants and Patiriots alike. Whether they be Federal or State.
Comment by Bob J Ross — March 16, 2008 @ 7:46 pm
The militia-only reading of 2A runs counter to two very fundamental principles - one of which is fundamental to our founding fathers’ beliefs, and the other is fundamental to life itself.
The fundamental principle this nation was founded on is that government derives its just powers from the consent of the governed. Without arms, there is no means by which that consent can be withdrawn in a worst-case scenario.
The other principle is as fundamental as and is a direct corollary to the right to life itself - the right of self-defense. It is more fundamental than the rights to liberty and the pursuit of happiness.
Reasonable restrictions can always be discussed and legislated, but mess with those fundamentals at the country’s peril. Cross the line and a great many people will begin withdrawing their consent.
Let’s put it this way, as I did on a forum several years back: You are not entitle to maintain a delusional sense of security at the expense of my right of self-defense.
Comment by Joseph Campbell — March 16, 2008 @ 8:31 pm
Compare the energy delivered by a 6-pound cannon to that of a modern high-velocity hunting rifle.
Let me add that the construction of the 2A I propose makes its purpose and function much like the 10A.
With or without originalism, all we have is nine elders making all the rules. Originalism is just the current way of making it seem otherwise.
Comment by Roger Friedman — March 17, 2008 @ 6:24 am
Momentum of projectile. Weight of projectile in grains x velocity divided by 7000 { the number of grains per pound }
.458 Winchester magnum. Elephant cartridge.
500 grain bullet at 2100 feet per second = a factor of 150
6 pdr. artillery piece.
42000 grain projectile at 1200 feet per second = a factor of 7200
Comment by Craig Canales — March 17, 2008 @ 8:17 am
The 2nd amendment goes to the core of the right of self-defense, and of recourse against a police state with potential genocidal tendencies. (I could envision an ‘enlightened society’ going ahead with ‘euthanasia’ of entire groups, maybe those infected by a virus, etc. It could easily happen in this century). It also goes to the core of our survival as a nation. What is the total number of our armed forces? 1.4 million? We could easily be overrun by China or India or some other populous state IF we did not have an armed population with a tradition of civic duty to the defense of the nation. The purpose of the judiciary os to act as a safety valve and say ’stop!’ when the executive and legislative branches get too far out of step of the rights and vision provided by our constitution.
Comment by Andrejs Vanags — March 17, 2008 @ 12:06 pm
OK, I yield on the relative force of revolutionary cannon and modern rifles. I figured 1/100 the mass at 10x the velocity = equal energy.
Comment by Roger Friedman — March 17, 2008 @ 3:48 pm
Pity the poor elephant Roger if the Supremes take away our elephant rifles. Believe it or not the muzzle loading 6 pdr is pretty much unrestricted. Jumbo would really have a bad day.
Comment by Craig Canales — March 17, 2008 @ 4:33 pm
What happened to Shelly Parker et al’s petition to have their standing question reviewed? It was just a quirk of fate that D. Heller had the opportunity to do a pre-enforecement constitutional challenge. Other issues (like contesting an assault weaposn ban etc) would require risking a felony just for the chance to bring the appeal to court. In other words, are pre-enforcement constitutional challenges allowed or did they die out with Parker’s petition?
Comment by Andrejs Vanags — March 17, 2008 @ 4:50 pm
Parker’s petition is still pending with SCOTUS. They haven’t decided whether they will take it or not, and likely won’t until the opinion in Heller is handed down.
Comment by James N. Markels — March 17, 2008 @ 5:26 pm
Mr. Friedman, you gave up before I was able to correct both of you. Unfortunately for Mr. Canales he was using the formula for Momentum where the formula for kinetic energy if KE = 1/2M times Velocity squared. Of course the end result still isn’t in your favor. The 6lb cannon ball comes out at 182 Kilo joules while the rifle comes out at 6KJ. A 50 caliber BMG comes out at between 20KJ and 18.5KJ. Unfortunately, the old cannon still wins.
Comment by James N. Gibson — March 17, 2008 @ 8:23 pm
Very true James. I’m a devotee of the ” Pondoro ” Taylor school.
Comment by Craig Canales — March 18, 2008 @ 8:52 am
The informational dialog on ballistics between Gibson, Friedman, and Canales reinforces my belief that there are a lot of smart people who know a lot of stuff and that eventually, through banter, the truth will come out. However, in the hypothetical case where the supreme court found a legal reasoning allowing the government, (Fed, State, or Local), to completely ban arms, (firearms, guns, pistols, assault rifles, cannons, whatever.), then what? Even if the court found that freedom of speech did not cover hateful and profane speech, did not cover critical speech about governmental policies and public figures, or even informative historical speech relating to any given topic, then what?
Laws are ultimately derived upon force directed from some person (X), whether that person is in an institution such as a government or a gang is irrelevant, against another person (Y), whether that person is a criminal or a candle maker is likewise irrelevant. So what would really happen if the Supreme Court eviscerated the Bill of Rights? Would people in contemporary society band together and forcefully throw off the yoke even if they legally could own a model 1911 .45, revolutionary era cannon, 9mm Uzi, and .458 elephant gun. Seems doubtful. No, I speculate that smart people would probably just talk about it, discuss the “historical, textual, logical and legal basis” of such an event, if they could, and then go watch television (a previous comment by Rufus Peckham, March 16, 2008). Maybe they would watch the history channel, discovery channel, or NOVA even as their rights evolved into privileges under various rationals and good intentions, such as, “For the sake of the children!”, or, “We don’t need to live in fear.”, or, “The professionals know best.” But such an event would not transpire all at once for that would cause a big stink. It would be incrementally done over decades of precedent establishing cases acclimating people to their newly won privileges.
Comment by Dean Camp. — April 19, 2008 @ 6:03 pm