The Brady Center and Heller
Damon W. Root | July 16, 2008, 4:28pm
The Brady Center to Prevent Gun Violence's Dennis Henigan has written a very interesting response to Robert Levy's Cato Unbound essay on the future of gun rights after D.C. v. Heller. Essentially, Henigan argues that the Court's conservatives have mangled the Constitution in order to reach a preferred outcome that will have little real world impact:
Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban. Regardless of whether the Heller majority's newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.
While it certainly makes rhetorical sense for Henigan to downplay the victory (and link it to criminals and their shady attorneys), it's not at all clear that the lower courts will see (or will continue to see) things his way. As David Kopel noted in reason after Heller came down, "Rome was not built in a day, and neither is constitutional doctrine."
For most of our nation's history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.
Moreover, the importance of the Court finally recognizing that the Second Amendment secures an individual right—not a collective one—shouldn't be minimized. And I must say, I find it pretty hard to believe that Henigan and his associates at Brady are really so lackadaisical about the incorporation of the amendment against the states. Chicago officials, on the other hand, are gearing up to protect the city's handgun ban in court. As deputy corporation counsel Benna Solomon told the Chicago Tribune, "We are prepared to aggressively litigate this issue and defend this ordinance."
Cato Unbound debate here. reason.tv's interview with Heller attorney Alan Gura here.
Donald R Laster Jr | July 17, 2008, 7:39pm | #
The Supreme Court did not have to protect the 1st Amendment, which is restricted to Congress, until the 1930s because we did not have a problem with Socialist and radicals trying to stifle free speech. The problem today is the failure to distinguish between speech and behavior.
The Brady center is not interested in preventing violence otherwise they would not be trying to disarm the country. The simple facts are an armed society is safer.
The following is a write-up I did and updated after the 2nd Amendment ruling. I have the ruling printed out and have read most of it.
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While I applaud the ruling it still fails to obey the US Constitution correctly. The majority opinion talks about a "prefatory" clause. This description of the 2nd Amendment in the opinion shows the Justices failed to read the actual English of the 2nd Amendment. The 2nd Amendment is a compounds sentence with 2 subjects and a single predicate. So while the ruling is a step forward it still fails to "restore" a right that has been unconstitutionally interfered with.
To understand what the 2nd Amendment actually states one must examine the actual English. The following text shows a standard English Structure Analysis, which I learned to do in the 4th and 5th grade.
The 2nd Amendment states
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.
Remove the prepositional phrases and you have
A well regulated militia, being necessary,
the right shall not be infringed.
Then remove the adverb phrases and you have
A militia, the right shall not be infringed.
By the rules of English when a series of nouns are separated in a sentence by commas the commas can be replaced by the word "and" and thus we have
A militia and the right shall not be infringed.
Also by the rules of English when a series of nouns are separated by "and" and share the verb phrase the sentence can be re-written as multiple sentences such as
A militia shall not be infringed.
The right shall not be infringed.
Then if you add the prepositional phrases and adverb phrase back in you have
A well regulated militia, being necessary
to the security of a free state shall not be
infringed.
The right of the people to keep and
bear arms shall not be infringed.
I do the examination as above since many people seem to have problems reading and understanding the English of the 2nd Amendment. In particular I listened to a discussion on WBAL (I believe - Channel 11) in Baltimore Maryland in the 1980s involving Sarah Brady and others and she and some of the others appear to have had a serious problem understanding the simple English of the 2nd Amendment.
This is partial section I never fleshed out.
In addition, the 10th Amendment make it clear that the 2nd is an absolute prohibition that applies to the States and local Governments as well as the Federal Government. Unlike the 1st Amendment that restricts itself to Congress the 2nd Amendment makes a blanket statement. Some one is going to say "What about the Criminal?". The 13th Amendment, which restricts slavery and involuntary servitude, clarifies this issue. A person subject to the criminal justice system no longer has rights. They only have privileges, until the period of punishment is up, that the jailer gives them. In short a convict is property of the State. It is also important to remember that the 9th Amendment also applies to the States and local government. It does not restrict itself like the 1st Amendment either. Nor is it a right to be "free from cruel and unusual punishments". That is a prohibition on the jailer.
On problem we have today is that the words of the US Constitution are regularly twisted. I learned to decompose sentences in the 5th grade (1970) and to read and write English in Elementary school. Any elementary school student if taught proper English can understand the US Constitution by age 10. That is how well the Founding Father write the US Constitution.
While reading the Supreme Court opinion (I have it printed out - 157 pages) it becomes clear the majority failed to understand the actual English. They did a lot of research on the existing case law but as the anti-gun advocates did they failed to read the 2nd Amendment as written. Instead of recognizing the true sentence structure the majority created a prefatory and operative clause and said the sentence could have a "Because" added at the beginning. This is the same concept that the anti-gun people attempt by trying to insert a "so" or "therefor" in the middle of the sentence. If the Justices had actually read the sentence as written the ruling would have prohibited registration, carry permits and other unconstitutional restrictions.
The Founding Fathers who crafted the US Constitution wrote it so everyone could understand it. And this includes the Amendments. So while the first step has been made there are many more steps to be made to under the various rulings that have interfered with the 2nd Amendment. Some of which this ruling references to justify the misreading of the 2nd Amendment.
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Another issue that people have failed to understand is that the US Federal Government is composed to TWO (2) co-equal branches of Government, not three (3). The Courts are not co-equal. This becomes obvious when one read Article III, Section 1, Paragraph 1 and Article III, Section 2, Paragraph 2, Sentence 2. Anyone who has study US Colonial History will understand why. The 13 Colonies had serious problems with activist Royal Judges who ignore the Colonial legislatures. A large number of Judges would be impeached for "Malfeasance in Office" for "Legislating from the Bench" if the Colonial leaders were alive today.
