"Meet Me in the Middle" Podcast on the Second Amendment

|The Volokh Conspiracy |

I much enjoyed my discussion with Pepperdine Prof. (and Pulitzer Prize winner) Ed Larson and "Meet Me in the Middle" podcast host Bill Curtis on the subject, and it's now up.

NEXT: What happens if the Chief Justice cannot serve at the Presidential impeachment trial?

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  1. Good academic discussion that dwells on arms for personal self defense (which was the scope of the Heller decision) and hunting. The 2nd Amendment was more; it recognizes the right to possess arms for defense of home and HOMELAND. The type of arms suitable (and in common use) for defending an individual’s condominium or the corner QuickeeMart is distinct and apart from the types of arms suitable for the defense of the homeland. The types of civilian arms kept for defense of homeland were historically martial quality small arms of equal (or better) lethality than those issued to the regular army. It would have been an absurdity to the colonial militia member that he would have to be called up for service with legislatively mandated inferior arms.
    The next Supreme Court review will have to recognize that the 2nd Amendment was contemplated for protecting civilian arms needed for putting down civil insurrections, native war parties, or foreign invasion, and, significantly for resistance to unconstitutional government oppression . Viewed in that light, there is no rational basis to conclude that the government has exclusive possession of the latest martial small arms, with the civilian populace (militia) is constrained to fight for their oppressors with outdated hunting guns.

    The Heller decision’s apparent approval of state bans on M16’s was in dicta. When next analyzing the role of civilian arms for militia type use, that throw off to re-assure the minority justices will be forgotten.

  2. Interesting discussion. He’s a bit more passionate on this topic than the 1st amendment, isn’t he?

    On the “purpose” of firearms: A very important point, is that firearms are inanimate objects. And purpose is an attribute of people.

    Firearms simply don’t have purposes, attributing that to them is a category error.

    Gun controllers are rather relentless about making this particular error, because they want to focus on the object, and ignore the owner. They don’t want the law abiding nature of an owner to be a defense, then don’t want to admit that the real problem is people.

    1. Okay, but . . .

      Guns are tools. As wrenches are designed to turn nuts, guns are designed to kill. That is the function intended by the makers.

      In my view, that’s not a reason to ban them. We can kill lawfully in various circumstances. But let’s be clear what they are.

      1. I dunno. I don’t think killing anything was very high on the design criteria for, say, an Anschutz Biathlon rifle or Feinwerkbau AW93 pistol. You could shoot someone with either, just like you could brain someone with a wrench, but that wasn’t what the designer intended in either case.

        In other news, Lamborghinis aren’t really about bringing home groceries.

        For that matter, I think if you ask your local P.D. what the purpose of their Glocks is, I think they will likely say something like ‘defending the lives of the innocent’.

        It’s not particularly useful information. Does it matter that a bayonet is intended to kill, and a kitchen knife is intended to slice tomatoes? Both stab the same.

      2. Right, and like a knife, a gun just sits there doing nothing until somebody picks it up, and is then used to do what THEY want with it. Be it life saving surgery or slitting someone’s gizzard.

        But the gun controllers live in a demon haunted world, and the guns are their demons, infused with the purpose of killing. And this somehow is supposed to matter more than what the owner intends to do with them.

        Well, maybe I’m over-thinking this. In the end, they’re just attributing this purpose to guns to have an excuse to pursue their pre-established goal of taking them away. They don’t necessarily really believe it, it’s just instrumental in nature.

      3. No, guns aren’t “designed to kill” any more than is a knife or an ax. A knife is designed to cut: cut a throat or cut an apple. Similarly, a gun is designed to project a bullet, whether at a paper target or at another human is the decision of the operator. Just like a knife.

  3. Good show, enjoyed part 2 as well. Could have done two hours on each, I think.

    1. The second party got a bit shouty at times, could have used a little better moderation.

  4. I can’t believe scholars like EV can’t see the readily apparent purpose of the preamble to the 2nd amendment; it’s purpose was to justify why the right of the people to keep and bear arms was a federal concern not just a local or state concern.

    The 1st amendment only prohibits Congress from passing laws so the framers knew how to restrict an amendment to only the Federal Government. But their was no direct Federal interest in state restrictions of speech, the press, or local religious beliefs, so the framers restricted the scope of the 1st amendment to Congress.

    The preamble to the 2nd amendment, along with the militia clause in article 1 is what makes preserving the peoples right to keep and bear arms a national interest and restrict the powers of the states and local government as well as Congress.

    A straight textualist argument should not need anything more than “the right of the people to keep and bear arms shall not be infringed”, but coupled with the first clause explaining the vital national interest in an armed citizenry makes the case airtight.

  5. The way I explain the 2nd amendment, is by analogy to a volunteer fire department.

    Suppose you’re concerned, not just that your community may suffer from fires, but that arsonists might get control of the local government. Your fire department might end up being sent out of the way while the fires raged, or even set to igniting them itself.

    But if you rely on a volunteer fire department, even if arsonists are in control of the government, that fire department will be motivated to put fires out, not set them.

    And if you guarantee the right of people to own and train with fire fighting equipment, then even if your local arsonist rules shut down the volunteer fire department, you can still organize to put out the fires they set.

    The 2nd amendment, like the rest of the Bill of Rights, is not intended to facilitate the government doing the right thing out of good motives. It’s intended to stop the government from doing the wrong thing out of bad motives. You simply can’t understand the Bill of Rights if you’re not willing to think of the government as a potential enemy of the people, intent on doing evil, not good.

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