Antonin Scalia

The Second Amendment Goes to Court

Civil libertarians respond to D.C. v. Heller

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For the past three decades, Washington, D.C. has enforced one of America's most draconian gun control laws—a total ban on the possession of handguns, not to mention strict gun lock provisions for rifles and shotguns, that has left law-abiding citizens unable to legally defend themselves and their homes. In March, the U.S. Supreme Court heard oral arguments in the case of District of Columbia v. Heller, in which seven D.C. residents challenged the constitutionality of the ban. At the center of the case is the question of whether the Second Amendment protects an individual or collective right to keep and bear arms.

Yesterday, the Court issued its long-awaited opinion, ruling 5-4 in favor of an individual right to own guns. reason assembled a panel of 8 leading civil libertarians to help make sense of what the Court said, what it means, and what's likely to come next.

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Alan Gura: Yesterday's decision is a huge victory for liberty. First, we saved the Second Amendment. That much should be obvious from the opinion. Yesterday, federal courts in 47 states were telling Americans they had no Second Amendment rights. The score is now 50-0, plus the capital, in the other direction. For budding lawyers, "individual right" is now the correct answer on the Multi-State Bar Exam. The movement to end private firearm ownership in America is dead and buried. Yes, we've got some work to do to make sure it stays that way. It will.

The case is "narrow but broad." Narrow, in the sense that our objective was merely to secure the individual nature of Second Amendment rights, and demonstrate—with a judgment—that the right has substance. Broad, in the sense that this simple principle can now be applied in other contexts. This is not just about flat-out gun bans in Washington, D.C. homes. All regulations that touch upon Second Amendment rights will get a well-deserved constitutional look. Instant background checks and felon-in-possession laws will survive. Laws meant to harass gun possession, while at best advancing only a hypothetical public benefit, will not. The Second Amendment is now a normal part of the Bill of Rights. It's not realistic to expect one Second Amendment case to answer all right to arms questions for all time, just as we have no one decision telling us what a Fourth Amendment "reasonable search" in all circumstances. We may not win every case. We'll win a good amount of them. The next step is obviously 14th Amendment incorporation. I'm looking forward to leading that fight. Learn more at www.chicagoguncase.com.

Libertarians can be impatient. Would anyone prefer the quick certainty of Kelo? Or McConnell v. FEC? It may be a tough slog to restore the Takings Clause and free political speech. Restoring the Second Amendment will take time, too. Today, with the right to keep and bear arms, we start from a position of strength.

Alan Gura argued District of Columbia v. Heller before the Supreme Court. He is a partner at Gura & Possessky.

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Glenn Reynolds: My first thought on Heller is that many gun-rights supporters never thought they'd live to see a Supreme Court opinion to the effect that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." Bob Levy, who brought the case against the advice of many gun-rights supporters, should feel very good about that.

My second thought is that this is a gift to the Obama campaign. While this won't take the gun issue off the table, it also won't energize the gun-rights crowd (which cost Al Gore the election in 2000 when he failed to carry Tennessee, largely because of his support for gun control) the way a contrary opinion would have. Obama's record of strong support for sweeping gun control would hurt him much more if gun owners felt more vulnerable.

My third thought is that whether this has much impact on the real world depends on how the next several cases proceed. In the 1990s the Supreme Court announced a major shift in Commerce Clause doctrine that offered the hope of paring back federal power considerably. But right-leaning public interest law groups didn't take up the challenge and bring carefully selected cases to advance the principle, leading it to be characterized by some (including me) as a constitutional revolution where nobody showed up. Gun-rights advocates are already talking about follow-on challenges in places like Chicago or Morton Grove. How well those are brought will have a lot to do with whether the Heller opinion is a milestone, or just a speedbump.

Glenn Reynolds is a law professor at the University of Tennessee. He blogs at Instapundit.com.

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Randy Barnett: Justice Scalia's historic opinion will be studied for years to come, not only for its conclusion but for its method. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Its analysis of the "original public meaning" of the Second Amendment stands in sharp contrast with Justice Stevens' inquiry into "original intent" or purpose and with Justice Breyer's willingness to balance an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. The differing methods of interpretation employed by the majority and the dissent also demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same. Now if we can only get a majority of the Supreme Court to reconsider its previous decisions—or "precedents"—that are inconsistent with the original public meaning of the text.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center and author of Restoring the Lost Constitution: The Presumption of Liberty.

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Brian Doherty: The Heller decision was exciting for fans of American liberty—even the dangerous and disreputable end of that liberty, where weapon possession and use rights abide in the minds of many good-hearted people who think guns are just ugly and awful and appeal to the worst aspects of human nature.

Scalia's opinion did a thorough job of fileting, layer by layer, the lame and unsupportable "collective right" beliefs about the Second Amendment—including lots of sadly necessary exegesis on how the word "keep" means that people have a right to, yes, keep arms in their homes.

But Heller represents no happy ending to our legal and public policy duels over guns. Scalia's opinion does admit that we do have a constitutionally protected right to some degree to defend ourselves and our property with weapons.

But the opinion also stresses that right is still regulatable in many, many ways. It leaves plenty of room (which you can be sure will be filled rapidly) for future court challenges and public policy fights to define the degree to which the government, at any level, can restrict or regulate the sale, possession, and use of weapons. It may well turn out that anything less severe than D.C.'s total ban will withstand scrutiny even under the newly revived Second Amendment.

The "eternal vigilance is the price of liberty" part: four members of the Supreme Court think that it's A-OK for the government to completely bar citizens from using guns for the protection of their lives and homes. That can't make sleeping at night any easier. That said, the Heller victory was a sweet one for the recognition that there are limits to what democracy can do to individual rights, and is worth celebrating for that.

Brian Doherty is a senior editor at reason and the author of This Is Burning Man and Radicals for Capitalism. He is currently writing a book about District of Columbia v. Heller.

***

Sanford Levinson: The majority obviously found that the Second Amendment does protect an individual right to bear arms, and they applied this right in the easiest possible case, i.e., a functionally absolute prohibition against handgun possession.

What cannot be determined from the opinion is what the future impact of Heller will be, beyond further litigation. I am reminded of a cartoon in the New Yorker several years ago, of a conversation at a suburban cocktail party where a woman says to a well-dressed man, who is carrying a rifle slung over his shoulder, "I've never met a Second Amendment lawyer before." I suspect that there will be more such lawyers in the next few years, but this says nothing about the prospects of winning such cases. For all of the rhetorical bluster of Scalia's opinion, it not only focuses on the extreme nature of the D.C. ordinance, but also goes out of its way in effect to legitimize a plethora of existing federal legislation regarding guns. And, of course, there is no way of knowing who will be appointing the all-important "inferior" federal judges, beginning in January 2009, who will play a far more important role than the Supreme Court in deciding the operational meaning of the Second Amendment.

Finally, Scalia should take a certain pleasure that Justice Stevens, by confining the entirety of his opinion to an "originalist" analysis of the Second Amendment (that obviously came to a completely different conclusion), seemed to concede the overarching importance of original meaning. Neither Justice was willing to pay any attention to the "dynamic" aspect of the Second Amendment. Scalia was presumably unwilling to cite Chief Justice Taney's opinion in Dred Scott, but it's the strongest single piece of evidence for the proposition that by mid-19th century an individual right to bear arms (at least if you were an American citizen) had become the conventional wisdom.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. His most recent book is Our Undemocratic Constitution.

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Jacob Sullum: The most important aspect of D.C. v. Heller, of course, is the Supreme Court's recognition that the Second Amendment protects an individual right to arms. From that premise it almost inevitably follows that the District of Columbia's gun law—which, as the Court noted, "bans handgun possession in the home" and "requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable"—is unconstitutional. If such a law does not violate the right to armed self-defense, it's hard to imagine what law would. That's why the Court did not bother to specify what level of scrutiny is appropriate for purported violations of the Second Amendment. It concluded that the D.C. law is invalid "under any of the standards of scrutiny the Court has applied to enumerated constitutional rights."

By the same token, however, this decision does not give a clear sense of the line between constitutional and unconstitutional forms of gun control. The Court indicates that laws regulating the sale of firearms and prohibiting concealed carry, gun ownership by "felons and the mentally ill," possession of "unusual and dangerous weapons" (as opposed to weapons in common use for lawful purposes), and possession of firearms in "sensitive places" such as schools and government buildings are consistent with the Second Amendment. But it is not clear whether a law against openly carrying guns would pass muster, or what kinds of guns count as "unusual and dangerous," or how onerous licensing and registration requirements can be before they run afoul of the Second Amendment.

On that last point, the Court says licensing and registration are not necessarily unconstitutional, but it sounds like it would look askance at conditions attached to them.

"Assuming that [plaintiff Dick] Heller is not disqualified from the exercise of Second Amendment rights," the Court says, "the District must permit him to register his handgun and must issue him a license to carry it in the home." (Emphasis added.) It's harder to predict which weapons will end up being covered by the Second Amendment, except that they will include handguns but evidently not machine guns or bazookas.

Finally, the majority opinion does not address the question of whether the Second Amendment, either directly or via the 14th Amendment, applies to the states as well as a federal domain like the District of Columbia. But it's hard to imagine why it wouldn't now that the Court has clearly acknowledged the right to armed self-defense as a fundamental aspect of liberty protected by the Constitution.

Jacob Sullum is a senior editor at reason and a nationally syndicated columnist.

***

Dave Kopel: Heller is a tremendous victory for human rights and for libertarian ideals. Today's majority opinion provides everything which the lawyers closely involved in the case, myself included, had hoped for. Of course I would have preferred a decision which went much further in declaring various types of gun control to be unconstitutional. But 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.

Likewise, the Equal Protection clause of the Fourteenth Amendment was, for all practical purposes, judicially nullified from its enactment until the 1930s. When the Court in that decade started taking Equal Protection seriously, the Court began with the easiest cases—such as Missouri's banning blacks from attending the University of Missouri Law School, while not even having a "separate but equal" law school for them. It was three decades later when, having constructed a solid foundation of Equal Protection cases, the Court took on the most incendiary racial issue of all, and struck down the many state laws which banned inter-racial marriage.

So too with the Second Amendment. From the Early Republic until the present, the Court has issued many opinions which recognize the Second Amendment as an individual right. Yet most of these opinions were in dicta. After the 1939 case of United States v. Miller, the Court stood idle while lower federal courts did the dirty work of nullifying the Second Amendment, by over-reading Miller to claim that only National Guardsmen are protected by the Amendment.

Today, that ugly chapter in the Court's history is finished. Heller is the first step on what will be long journey. Today, the Court struck down the most freakish and extreme gun control law in the nation; only in D.C. was home self-defense with rifles and shotguns outlawed. Heller can be the beginning of a virtuous circle in which the political branches will strengthen Second Amendment rights (as in the 40 states which now allow all law-abiding, competent adults to obtain concealed handgun carry permits), and the courts will be increasingly willing to declare unconstitutional the ever-rarer laws which seriously infringe the right to keep and bear arms.

As the political center of gravity moves step by step in a pro-rights direction, gun control laws which today might seem (to most judges) to be constitutional will be viewed with increasing skepticism. The progress that the pro-Second Amendment movement has made in the last 15 years has been outstanding. As long as gun owners and other pro-Second Amendment citizens stay politically active, the next 15, 30, and 45 years can produce much more progress, and the role of the judiciary in protecting Second Amendment rights will continue to grow.

Dave Kopel is Research Director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Educators and Trainers Association was cited four times in the Court's opinions.

***

Joyce Lee Malcolm: What a great day for individual rights. The majority of the Supreme Court retrieved the original intent of the Second Amendment to permit individuals the right and ability to defend themselves. For thirty years those convinced that ordinary people can't be trusted with guns have dominated the discussion. In order to ban civilian ownership of weapons, the original meaning of the Second Amendment had to be reinterpreted, and unfortunately with its awkward language—which was well-understood at the time—that wasn't too difficult. Generations of law students have been taught that the Second Amendment merely protected the right of states to have a militia, a right already incorporated into the body of the Constitution. The nearly complete control over the militia by the federal government was not altered in any way by the amendment, but no mind. The linguistic efforts to deny an individual right were quite inventive—"the people" only in this amendment meant a group, not an individual, "bear arms" implied an inclusively military context, that awkward word "keep" was to be erased by linking it with "bear" in order to make it exclusively military, and so on. And it all nearly worked. But not quite.

Thanks to the scholarly efforts of many people, the overwhelming evidence for an individual right to keep and have weapons for self-defense was uncovered and published. It was that evidence that the justices relied upon.

My only disappointment with an otherwise great decision was how narrow it was. Four justices ignored the evidence in order to preserve the gun control measures meant to deny individuals the right to be armed. In the process, they were prepared to erase a basic right and uphold the stringent and ineffective D.C. gun ban, a law that went so far as to forbid reassembling a gun in the home in the case of a break-in.

Still, it was a great day for every American, one that will ensure a safer America than any number of gun bans ever could.

Joyce Lee Malcolm is professor of legal history at George Mason University School of law. She is the author To Keep and Bear Arms: The Origins of an Anglo-American Right.

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  1. Anybody up for trusting our liberties to “liberaltarian” appointed judges?

  2. No.

    Again, I want to stress that people are pretty cavalier in their use of the phrase “Machine Gun”. I’m sure they intend it as defined in the NFA, but they’re not illegal and one can, in fact, possess them in most states. Further, DC defines a machine gun as a fully auto or burst (more than one round per trigger pull), but also as semi auto if it can fire more than 12 rounds without reloading, or can be easily modified to do so (meaning, swap to a higher capacity magazine and even a Glock 29 can hold 33 rounds).

    There is a lot of work to do, but at least this “collective right” crap is out the door.

  3. No=in response to Anybody up for trusting our liberties to “liberaltarian” appointed judges?, at least in regards to 2nd amend rights.

  4. I disagree with what Glenn Reynolds said about this ruling taking the issue off the table and helping Obama. It may calm the gun rights people down but it will energize Obama’s anti-gun supporters possibly forcing Obama into the open on this subject.

  5. It may calm the gun rights people down but it will energize Obama’s anti-gun supporters possibly forcing Obama into the open on this subject.

    We can only hope, but it’s up there with “World Peace” and “eliminate the IRS” to have Obama actually give some substantive statement on anything.

  6. I agree with Glenn Reynolds’ idea that this may help Obama by taking the gun control issue off the table. People that would like to vote for him, but might not because of the gun control issue, may now feel like the Heller decision will protect us from excessive gun control and they don’t have to worry about that anymore.

    On the flip side, I think it is also possible that it could hurt Obama. The decision provided a very clear picture of the ideological divide on the court. All McCain has to say is say “Look at the decision: the judges I would put on the court would support this ruling. The judges he would appoint would not.”

  7. Anybody have a count yet on how many more court cases will be necessary to win before the Heller ruling can actually help anybody?

    Still have not seen anybody mention if there are any stores selling handguns in DC. I know there is a Dick’s Sporting Goods there, but they stopped selling handguns in all of their stores a few months ago, IIRC.

    So, would getting the stupid federal law requiring people to purchase handguns only in their State/Territory of domocile be on the block so that DC folks can legally buy in VA and MD? Or would that be a whole different deal. Heard something about a “plan” to sell handguns in or near police stations, but not sure how real that was.

    Seems the DC (hopefully MD too) hysterical-level registration requirements should be on the block sooner than later too.

    DC seems to be all nuts about honest folks transporting firearms anyplace. Hope those wacky regs het tossed soon too. Perhaps a case of someone taking their pistol to the police station for registraion and getting arrested could knock down several at the same time?

    Baby steps, I hear, is the way we should view this. Quite a frustration.

  8. Marcvs,

    Wow, that Chicago law sounds as crazy as all the DC crap.

    If that announcement is covering what SAF is bringing, and it gets a reasonable ruling, then they should get a whole lot of nonsense knoced down in one case.

    I am having a little heartburn right now renewing my TN CCP. If I do it by mail I have to send documentation that will not be returned, like a passport (valid or expired), and have to pay a $50 “renewal fee” either by mail or if I go in person. However, I am a lot better off than folks in DC or even VA.

  9. The fight begins in Chicago

    They basically filed before Scalia’s ink was dry. I love it. Fuck you, Daley. No wonder you’re already running scared.

    I agree with Glenn Reynolds’ idea that this may help Obama by taking the gun control issue off the table.

    All McCain has to do is go “it was 5-4! That close!” and press the judicial appointments issue to get people fired up. I think it’ll actually be a wash; people will feel their rights are safe now, but will become slightly alarmed again by how close it was, and this will end up not affecting turnout overall for either candidate.

  10. The fight begins in Chicago:

    Awesome. Suck it, Daley.

  11. I surprised by how little press this is getting.

    If this case had been decided in the 1980s or 90s, it would have been one of the biggest political issues in the country.

    With the Democrats pretty much abandoning the issue, and even the NRA adopting an “enforce the gun laws on the books” position, the country is much closer to a consensus than it used to be, and this decision falls right in line with that consensus.

    Mike Dukakis ran on gun control in 1988. George HW Bush ran on gun rights in 1992. Those were top-tier issues they pushed throughout their campaigns.

    Things have really changed.

  12. One comment and I’m out.

    I’ve been listening to the 2nd amendment crowd for decades. I remain unconvinced.

    I don’t think having more guns around makes for a safer environment. It seems to me that both sides wave around “studies” and “evidence” as if they conclusively and indisputably supported their side while summarily dismissing what the other side waves around. For my part, anytime I hear someone say “an armed society is a polite society” I stop paying attention.

    Regarding the 2nd amendment itself. I’ve been hearing people tell me and tell me that it is indisputably an individual right. They have a case but it’s not as cut and dried as they think.

    More to the point, the “well regulated militia” language tells us specifically what it’s intended purpose is. It has nothing to do with defending yourself in your own home. The 2nd amendment was meant to ensure the people could protect themselves from their own government. Ever since WACO, the 2nd has been nothing but an anachronism.

    OK, commence with the throwing of the rotting vegetables.

  13. Checklist:

    1. Win lottery or get way better job.

    2. Get high-speed legal team.

    3. Rent apartment in DC

    4. Attempt to register and purchase ParaOrdnance hi-cap .45 semi-auto pistol.

    5. Sue DC for violating my right to own a semi-auto pistol, for calling it a machine gun, fo making me register the darn thing to begin with and for just beeing overall jackasses.

    6. ???

    7. Conservative book deal and all profits used to create a 2nd Amendment foundation.

  14. 8. Never invite Warren to Militia Happy Hour.

  15. “I surprised by how little press this is getting.”

    They’ve spent about 1/10th the time talking about this of what they did talking about Russert’s death.

  16. joe, you are correct that pretty much everyone (except the serious gun-banners) has moved towards a more gun-rights position, especially since we have had so many states adopting shall-issue yet crime continues to go down.

    However, the Chicago fight, and others like San Fran, are going to be bitter and full of incredibly hyperbolic rhetoric that will scream from the front pages.

  17. OK, commence with the throwing of the rotting vegetables.

    Why? Your argument is stupid and has been utterly invalidated.

  18. OK, commence with the throwing of the rotting vegetables.

    No. They are for my compost heap. Build your own.

  19. That’s being generous, JLM.

    Episiarch,

    joe, you are correct that pretty much everyone (except the serious gun-banners) has moved towards a more gun-rights position Except the NRA, who have now begun advocating for the enforcement of the laws that they once fought to defeat, while working mainly to oppose the adoption of new laws.

    “Just about everyone, except the extremists on both sides, have moved towards the middle,” would be an accurate statement.

  20. The 2nd amendment was meant to ensure the people could protect themselves from their own government. Ever since WACO, the 2nd has been nothing but an anachronism.

    The rest of your post is garden-variety idiocy, but this is bizarre. Since the government has more arms than the people now, we should just give up and throw away the right? I’m confused as to how you started with a valid point (the 2nd is meant to allow for popular revolt) and ended up with “melt ’em down”.

  21. Warren: Regarding the 2nd amendment itself. I’ve been hearing people tell me and tell me that it is indisputably an individual right. They have a case but it’s not as cut and dried as they think.

    Q) Why would the Bill of Rights include 9 individual rights and 1 “collective right”? Or, do you think that the 1st amendment, etc. are also collective rights?

  22. I don’t think having more guns around makes for a safer environment.

    The only guns you need to worry about are guns in the hands of the criminal element. Many, many studies show that guns owned by law-abiding citizens present no real risk at all.

    Gun control laws don’t effect gun ownership and use by criminals much at all, but they do suppress gun ownership by law-abiding citizens.

    Bottom line: gun control laws don’t make for a safer environment. Any law that restricts a fundamental right like the right to self-defense should meet a pretty high threshold; gun control laws generally don’t meet that threshold.

  23. Except the NRA, who have now begun advocating for the enforcement of the laws that they once fought to defeat, while working mainly to oppose the adoption of new laws.

    There are relatively few laws on the (federal) books that the NRA opposed in their final form; NRA lobbying general takes the mainstream/pragmatic approach of trying to amend proposals to remove the most offensive features.

  24. “Just about everyone, except the extremists on both sides, have moved towards the middle,” would be an accurate statement.”

    Extremism in defense of liberty is no vice…….

  25. Why would the Bill of Rights include 9 individual rights and 1 “collective right”?

    The 9th and 10th define individual rights? You sure about that?

    The “insurrectioist” position of the 2nd Amendment – the right of The People to take up arms agains the government, or at least posess enough arms that the government doesn’t get in the habit of pushing them around – doesn’t have any collective element?

    That’s just nuts. There are obviously collective right elements in the Bill of Rights.

  26. “Just about everyone, except the extremists on both sides, have moved towards the middle,” would be an accurate statement.

    Hmmm…no. Gun rights have almost uniformly been winning showdown after showdown for the last 15 years. Gun control has lost. And people’s opinions have shifted towards the gun rights position, not to the “middle”, whatever that is.

  27. Extremism in the defense of liberty is still extremism.

    “But we’re right” doesn’t get you any closer to the mainstream, and the point I was responding to was about the effect of the ruling and the issue on American politics overall.

  28. A tad unrelated, but how is Glenn Reynolds a libertarian??? Has this guy not been in support pretty much of every atrocity against civil liberties committed by the bushocracy? this is the instapundit bootlicker right? or is this a different GR?

  29. Yes, even in the light of this ruling categorically stating that Amendment II expresses an individual right, we still have folks trying to say it does not. Just like we did before. It does not matter how plainly it is stated as an inividual right. If the ruling were one line stating it is an individual right the same people would be arguing against it.

    I am sure someone exists who thinks Amendment I only protects the right of the press to petition the government while peaceably assembled in a house of worship while speaking freely, but I have not heard one of the collective right folks read Amendment I in that manner, yet.

    Looking forward to it.

    Note: I never thought I would hear anybody compare firearms manufacturers to homeowners in DC who fail to shovel their sidewalks in the winter either, but had to hear every blowhard in Reston, VA spout that crap while DC was tryign to sue gun makers who were prohibited from selling to DC residents AND DC residents were prohibited from buying from them.

  30. Gun rights have almost uniformly been winning showdown after showdown for the last 15 years.

    Because they’ve limited themselves to low-hanging fruit, rolling back overreaches from the 70s and 80s (the period when gun control was kicking the NRA’s ass), like the DC gun ban.

    The NRA HASN’T been arguing for the enforcement of existing gun laws as part of their platform? Really? I haven’t heard too much about “jack-booted thugs” from them lately. Come to think of it, I haven’t heard much of that type of language for about 15 years. Hmm…

    “The gun rights position” isn’t what it was 20 years ago. “The gun rights position” that the country has been moving towards is well to the “left” of where the NRA used to be. It’s this new position that the country is moving towards.

  31. A tad unrelated, but how is Glenn Reynolds a libertarian???

    He supports state sanctioned Gay Marriage.
    That is the litmus test for libertarians.

  32. This is precious, btw:

    …the gun rights position, not to the “middle”, whatever that is.

    “The gun rights position” gets to sit there all by itself, but the term “middle” gets not only scare quotes, but a “whatever that is.”

  33. Please define the middle, joe. Exactly.

  34. He supports state sanctioned Gay Marriage.
    That is the litmus test for libertarians.

    Correct. Anybody who supports State sanctioned marriage of any kind can not honestly call themselves a libertarian of any kind.

  35. Please define “the gun rights position,” Episiarch. Exactly.

    Or, if you actually have any thoughts rather than semantics, or wish to respond to either of the examples I’ve given of the NRA moderating its line, that would be even better than going off into a semantic cul de sac.

    I think you can figure out all by yourself what the term “the middle” means in political discourse.

  36. The 9th and 10th define individual rights? You sure about that?

    Joe: The 9th says “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”. I don’t see a collective right there.

    Now the 10th amendment does reserve power to the States or the people but do you believe that the authors would give people the right to defend themselves in the 2nd amendment and then modify it the 10th?

    As to the insurrectionist position being “collectionist”, I disagree. I have the indiviual “CHOICE” to join or stay on the sidelines. Tell me, is freedom of religion a “collective” choice. May a state or DC pass a law outlawing Islam or any other religion?

  37. SOFL Hockey Fan,

    I hope some day my fellow Baptists and I will be able to practice snake handling and poison drinking freely.

    As for certain of my Mormon brothers and sisters, I am sure that if they stopped going to the government for multiple State sanctioned marriages their problems would be lessened.

  38. SOFL,

    Individuals have the choice to own or not to own under the 2nd, I agree. It does protect an individual right, but it protects a collective right as well.

    While the “government-cowing” element of the 2nd Amendment ultimately operates via individuals making unique choices for themselves, the effect – unlike the hunting/personal defense/sporting elements – relies upon there being a collective, a militia, a body of armed people sufficient to alter how the government might operate. The vision of how gun ownership protects rights and keeps the government in line wasn’t “John can take his gun and hold off the police by himself, or go shoot a corrupt officer,” but there being enough armed people in a community, and in the public at large, to throw a real wrench into oppressive government schemes.

  39. SOFL,

    I’ll add, you don’t see language in the first like “the existence of congregations being necessary for the morals of a free state” before the freedom of religion language. The fact that the framers put in such language when discussing the RTKBA, and not for any of the other rights, means something.

    I don’t think it means that there is ONLY a collective right, but it means something.

  40. Or, if you actually have any thoughts rather than semantics

    joe, I know that it’s Friday, you’re hung over, you have no girlfriend to beat, and you are just itching to get into your favorite pastime of endless pointless cyclical argument.

    But I’m not. I was willing to (relatively) politely discuss this issue with you, but your colossal assholishness is just too much for me to overcome today.

    Go find TallDave and have a sweaty circle-jerk with him, he seems to like it just as much as you.

  41. SOFL Hockey Fan,

    I will gladly add that if the homosexual community, welcome in First Baptist Church of Montag, especially the lipstick lesbians, would stop trying to get State sanctioned “marriages” they would have fewer problems too.

    They can be married at FBCM of course and we will provide a free guide on how to find a lawyer to make a will, so that the government or the wrong relatioves do not get their stuff, forming Trusts and all sorts of other useful things that so many people have been brainwashed into thinking the government is supposed to do.

    Donations are NOT tax deductable because we refuse government permission to run a Church.

  42. Waah waah waah.

    About what I expected, Episiarch. I was discussing the issue, and you decided it would be more interesting to play your word games.

  43. Joe, do you have to disagree with somebody on every thread? It’s a minor issue that y’all are pretending is important. What direction the political spectrum has moved is a matter of perspective.

  44. I just didn’t want to get dragged into another parsing contest. Sorry if I read that more harshly than it was intended.

  45. you guys are pulling my leg about the gay marriage thing right? that would essentially make all democrats libertarians.

    ok, now that i typed that, i realize you were definitely pulling my leg. so, that still leaves the question open: why did they call GR a libertarian?

  46. sebs, I think he used to kind of be a Libertarian.

    He’s one of the “9/11 changed EVERYTHING” crowd, though and has given up on civil liberties now. He’s more or less a Rudy Giuliani-type, whatever you’d call that. Pro-gun (I know this wasn’t one of Giuliani’s issues), socially tolerant, and in favor of vast and expansive powers for the military and law enforcement.

  47. thanks for the clarification, someone.

    i wish Reason of all publications would not label him a libertarian. it’s really dissonant!

  48. Please define “the gun rights position,” Episiarch. Exactly.

    “The individual right to keep and bear arms shall not be infringed — all gun control laws shall be struck down” would be the extremist POV advocated by the Second Amendment.

    Now, what was the “middle” ground again? And is it the same for everyone, or is it a shifting compromise of invalidating some but not all of the Second Amendment?

  49. I get a good impression of someone, you really need to read over a somewhat long period of time, and not just links when opponents get exercised over individual items.

    Also, there are not enough conscious libertarians around to start worrying about the un-pure.

    I am not going to try to prove that Reynolds is just as libertarian as any, but he has at least a streak of libertarianism; which is more than you can say for most.

  50. you guys are pulling my leg about the gay marriage thing right? that would essentially make all democrats libertarians.

    If all democrats were for Gay marriage than maybe one of their national candidates would be for it too. I expect most ethnic/racial minority and lower education/earnings democrats oppose it.

    Glen Reynolds may not be “a libertarian” but he is most certainly “libertarian”.

  51. dang, replace “I get a good” with “To get a good”

  52. siv and anomdebus, i certainly hear what you are saying, but isn’t there some sort of rock bottom line at which you just can’t be a libertarian? being a major defender of bush’s civil liberties policies is in my mind the essence of anti-libertarianism.

  53. You would first need to prove that he is in fact “a major defender of bush’s civil liberties policies”, which would require a comprehensive study of his posts.

    I am sure you could find some links that expressed opinions (for example) that under the common reading of law, the Bush administration was supported. However, that is different from him saying that is the way he would like it to be, or he thinks should be.

    In that process, you might also be ignoring other pieces where he is critical of the Bush administration.

    I am not a Reynolds scholar and do not have any interest in cataloging his positions or defending him on particulars, but I have read his site for a while and think he gets a bum rap some times.

    One thing I think I can say, something that may be misunderstood, is that he links to all sorts of stuff many times with little or no comment. I am pretty certain that he does endorse every single one of those links, though some people think he does. He does in fact link to people who disagree with him, not necessarily just to put them down.

  54. I am not happy with this decision at all. I think the crowing in the article over Scalia’s error-plagued opinion, combined with the “Rome wasn’t built in a day” attitude is quite disturbing.

    My take on it is here:

    http://fyngyrz.wordpress.com/2008/06/27/2nd_amendment/

    This was not a victory. This was an accidental “lean” in the proper direction for the WRONG REASONS.

    1. I moved my blog; the new location of the linked article is here:

      http://fyngyrz.com/?p=60

  55. Benb — interesting take on the Second in your linked article.

    Assume the Supreme Court ruled the way you outlined they should. That sets off a race for someone to legally build nukes and weaponized anthrax before the relatively slow process of ratifying the Amendment you propose.

    OK with someone getting their nuke built and detonating it before ratification occurs?

    OK with members of Al-Qaeda legally building nukes in every major city, and setting each one off as soon as it’s completed, while the ratification drags on?

  56. Your theory is entertaining, but also ridiculous.

    You’ll note that US constitutional law ends at US borders (as well as where congress begins to make law.)

    You’ll also note that no one has built a nuke outside our borders and brought it here. In 60 years of opportunity, during most of which we wouldn’t have even had a clue if someone had done so until it actually went off. It’s just not that easy to build such a weapon. Materials are a problem, design is a problem, assembly is a problem, transport is a problem.

    Furthermore, the whole point of that construction of the amendment was that no sane person would object to it; passage would be a doddle. It is the right way to go. It is the ONLY right way to go.

    But let me address your thesis directly: Yes, I am OK with those possibilities.

    If we give up liberty through fear, we’ve given up the thing in life that is most worth having. If we allow the government to do anything it wants, regardless of its constituting authority, we have bought ourselves a dictatorship. It may be benign – today – in that it doesn’t do a lot to annoy you personally, but tomorrow it may be run by a different set of people, people who, by your own choice, you have decided can do anything they like, because you made the constitution moot. They may do some things you object to, but you’ll have no grounds — it was you who said they didn’t need to be bound by the constitution.

    I can’t line up with your position.

  57. I was looking forward to a reasoned analysis and instead got what amounted to a libertarian circle-jerk. As someone who considers himself libertarian-leaning, I have long been ambivalent to the notion that the 2nd Amendment allows an individual right to own guns where the terms “people” (as opposed to person) “militia” and “well-regulated” appear in its text. No amount of asserting otherwise changes these facts, be it by libertarians or Scalia. To do so is just Lochnerizing by other means.

  58. So, you call this thing “reason”, and instead of “reasoning” you get “propaganda”.

    I guess it’s a bit like that tiny difference between “news” and “opinion”.

    Well, I guess instead of talking to people with another opinion and discussing said, most likely, differing opinion, it is easier to flock together with people who think alike and to pat each other on the shoulder for having the “correct” opinion.

    Makes people feel better.

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