Of Arms and the Law
Navigation
About Me
Contact Me
Archives
XML Feed
Home

Ghillie Suits and Gear

Law Review Articles
Firearm Owner's Protection Act
Armed Citizens, Citizen Armies
2nd Amendment & Historiography
The Lecture Notes of St. George Tucker
Original Popular Understanding of the 14th Amendment
Originalism and its Tools

ISOcover150x200sm.jpg

I've released my documentary film on the history of the right to arms, "In Search of the Second Amendment." It stars twelve professors of constitutional law, plus Steve Halbrook, David Kopel, Don Kates, and Clayton Cramer. You can order the DVD here. And here's the Wikipedia page on it. SUPREME COURT SPECIAL: additional orders only $10 each.


2nd Amendment Discussions
1982 Senate Judiciary Comm. Report
2004 Dept of Justice Report
US v. Emerson (5th Cir. 2001)

Click here to join the NRA (or renew your membership) online! Special discount: annual membership $25 (reg. $35) for a great magazine and benefits.

Recommended Websites
Ohioans for Concealed Carry
Clean Up ATF (heartburn for headquarters)
TheSurvivalistBlog.net
Knives Infinity, blades of all types
Buckeye Firearms Association
NFA Owners' Association
Leatherman Multi-tools And Knives
The Nuge Board
Dave Kopel
Steve Halbrook
Gunblog community
Dave Hardy
Bardwell's NFA Page
2nd Amendment Documentary
Clayton Cramer
Constitutional Classics
Law Reviews
NRA news online
Sporting Outdoors blog
Blogroll
Instapundit
Upland Feathers
Instapunk
Volokh Conspiracy
Alphecca
Gun Rights
Gun Trust Lawyer NFA blog
The Big Bore Chronicles
Good for the Country
Knife Rights.org
Survivalist Blog
The BitchGirls
Geeks with Guns
Hugh Hewitt
How Appealing
Moorewatch
Moorelies
The Price of Liberty
Search
Visitors since April 1, 2005: Free Web Counter
Free Hit Counter

Credits
Powered by Movable Type 3.15
Site Design by Sekimori

« Reaction to McDonald v. Chicago | Main | Pro-arms article ... at Daily Kos? »

This settles one thing

Posted by David Hardy · 5 July 2010 12:10 AM

I have long felt that Second Amendment legal thinking is guided, not by any "liberal vs. conservative" division, but by "comfortable around guns vs. guns are foreign, strange, and dangerous: division. I have a number of friends and 2A advocates -- the crowning case being Mark Benenson, former president of Amnesty International's US branch -- who could be described as "liberal" by any conceivable standard.

One short segment of the "liberal" wing's dissent in McDonald v. Chicago confirms this. The dissent argues that applying the right to arms to States will make for a lot of judicial workload (as if recognizing that the First Amendment protects pornography but not obscenity did not), asks whether the right covers "Semi-automatic weapons? When is a gun semi-automatic?"

[I doubt that the dissent had in mind Webley's 1895 patent on a semiautomatic revolver, of which under 5,000 were manufactured.

· Chicago gun case

Comments

That the question of what constitutes a "semiautomatic" firearm has to be taken seriously is based on the highly questionable assumption that the dissent is actually a reasoned and honest attempt to reach the best decision, rather than a poorly cobbled assembly of disjointed and often specious arguments collected simply to cast doubt on a decision that runs counter to their personal prejudices.

Posted by: Ken at July 5, 2010 08:48 AM

I agree that Americans can be categorized as those comfortable around guns and those uncomfortable around guns. (For instance, the latter tend to think guns can "just go off" while merely resting on a workbench.) But that's not to say you gotta be a gun-guy to be a fantastic RKBA advocate. Some of the best attorneys in this movement rarely pick up and fire a gun themselves.

I am reminded of this line: "There are only 10 types of people in the world: those who understand binary, and those who do not."

Posted by: Masha at July 5, 2010 09:54 AM

While it might be dangerous to categorize the chattering classes using binary choices in the RKBA debate (or all the rest for that matter), it is how political science is applied. "If you're not for it, you're agin' it."

Nixon seized the high ground in the Drug war by creating the DEA because he saw a gap in the opposition's platform that could be exploited to the Republican's advantage. As a consequence, and there is not doubt in MY mind about this, the War on Drugs has been THE SINGLE most corrosive influence on individual rights protected under the constitution. Currently, there is no position in the middle, you either support Law Enforcement or you are a dangerous liberal advocating chaos by letting children become drug addicts.

The strategy to demonize firearms, to eradicate "responsible" ownership and marginalize us "gun nuts" wouldn't work so long as people were comfortable with firearms. The resulting attack was to segregate the forms of gun ownership and training that had been developed by the NRA following the civil war for defense of our nation. Training had to be first removed from government institutions where it had become normalized and accessible by the public. Next, why do "you" need a gun when "we" have the police? It was a natural course of behavior and part of a plan. The part of the plan that failed was collectivism of the militia.

Why can't the unorganized militia defend the nation? Because "we" have the Army. However, "we" will decide when to deploy it and for what reason. So what are "you" (the People) going to do with their guns when "we" (the government) have assumed the "right" to defend the borders?

Yes it is binary, but the roots run deeper than for or agin' comfort of skill at arms. The People have surrendered too much power to the government. Power, of course is money. This power needs to be revoked. Government is too big. From this position, it is just a short trip to the conclusion that if you don't support the government -- you are a terrorist.

Posted by: Jim D. at July 5, 2010 12:40 PM

To be fair, I read that as the dissent pointing out a whole slew of questions that courts might find themselves faced with in the aftermath of the Court's decision. The section of the dissent containing that statement starts out: "determining the constitutionality of a particularstate gun law requires finding answers to complex empirically based questions of a kind that legislatures are better able than courts to make."

The question was part of a list of questions that the dissent thought courts would find themselves having to answer, which are the types of questions better suited to legislative answers.

So the "when is a gun semi-automatic?" seems to me to be referring to the potential need to define the term in a particular case (e.g., a state regulation on semi-auto guns). The point being that courts should not be relied upon to come up with the appropriate legal definition of a "semi-automatic" firearm; that's the legislature's job.

Not that I'm buying the argument very much. I disagree that the McDonald decision will suddenly force the courts into the position of the legislature, anymore than any of the court's First Amendment cases have done so. What's the definition of "obscene"? Nobody knows, but as Justice Potter Stewart taught us, judges know it when they see it.

Posted by: Bill at July 7, 2010 03:27 PM

Post a comment




Remember Me?

(you may use HTML tags for style)