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Gura contra Wilkinson
Here's Alan Gura's response, scheduled for UCLA Law Review, to Judge Wilkinson's anti-Heller article. Wilkinson argued that conservatives should reject Heller -- implicitly using his own definition of conservative as someone strongly disfavoring courts' striking down of legislation on constitutional grounds. (Personally, I suspect that definition evolves out of a relatively small number, whose beliefs were created against the background of the Warren Court's ... well, beating up their views during the 1960s and early 1970s. Losing hurts, and in reaction they challenged the legitimacy, not of the arguments employed, but of the entire idea that courts ought to enforce the Constitution (or at least do so without the most extreme reluctance).
BTW, to download Alan's article: go to the link. You'll see a one-para abstract. Above the title, click on Download. A new page appears, so like the former one that you'll probably miss fact that it's new. But just below download bar is a button for "SSRN." Click on that and you'll get the download. No idea why SSRN makes it this hard.
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I only read the introduction, but I thought it was quite good. Gura makes one significant mistake though. He says "the Court affirmed the Second Amendment’s original public meaning, as confirmed by its plain text."
In confirming that the 2nd included a right independent of militia enrollment, the court did affirm its original public meaning. But then they adopted the absurd "in common use" test. So the court first recognized the original public meaning, and then turned around and rewrote the Constitution, in the tradition of judicial activism.
I suppose it's better to have saved a few more of the remaining shreds of the Second Amendment rather than throwing it out almost completely, like the minority tried to do. But then very few of us complain vigorously when the court ignores a part of the constitution that we don't like. And it's not like the framers or the Constitution were infallible.
Yep, they knew they weren't infallible as evidenced by their inclusion of Article 5.
This is a related comment, but not directly about Gura's article.
Gura's article was published in a Symposium Issue on the RKBA after Heller, just published in the UCLA Law Review. Articles are from scholars on both sides of the debate. You can download any of the 12 articles from that issue here:
http://www.uclalawreview.org/articles/?view=56/5
I read Prof. Eugene Volokh's contribution last week and found stunningly helpful in understanding a lot of legal concepts (e.g., strict scrutiny, intermediate scrutiny, burden, ...) in an entirely new way.
Other, generally pro-RKBA, scholars with articles in that issue include Nelson Lund and Gary Kleck, among others.
In all cases, clicking on an article from the TOC will take you to a page with the abstract. Look carefully on that page for a small Adobe-branded icon; click on that to download a pdf of the entire article.
I am SO glad that Alan accepted Rick's offer of free plane tickets and will attend this year's Gun Blogger Rendezvous - you-all should come too! I also really enjoyed his brief talk tol the Federalist Society at Santa Clara U. earlier in March of this year.
Alan Gura, HELLER AND THE TRIUMPH OF ORIGINALIST JUDICIAL ENGAGEMENT: A RESPONSE TO JUDGE HARVIE WILKINSON, 56 UCLA L. Rev. 1129, fn 149 (2009):
[quote] * * * It might be useful to note that [Professor Saul] Cornell serves as the Director of something called “The Second Amendment Research Center,” created in 2002 with a $399,967 grant by the Joyce Foundation. Citation to Newly Published Authority Per Rule 28(j), at 2, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (No. 04-7041) (citing the Joyce Foundation website). The Second Amendment Research Center’s website now claims it is “supported by a generous grant from the Joyce Foundation.” Second Amendment Research Center, http://secondamendmentcenter.com/about_us.asp (last visited May 26, 2009). The Joyce Foundation is the nation’s preeminent and perhaps most lavish sponsor of extremist gun prohibitionist groups and publications, including the Violence Policy Center, Handgun Free America, and Legal Community Against Violence. The Joyce Foundation, Grant List, http://www.joycefdn.org/Programs/GunViolence/GrantList.aspx (last visited
Mar. 31, 2009). [b]It is unlikely that anything funded by the Joyce Foundation, or produced by its
“Second Amendment Research Center,” would conclude the Second Amendment has any meaning
as an individual right.[/b]
I do not question the Joyce Foundation’s logic in funding work that supports its political objectives, nor would I fault Cornell for accepting support from sympathetic donors. Indeed, it is only natural and proper that people seek out and support those with whom they agree. The money does not alter the merits, if any, of their work. [b]My point is only that political advocacy should not be taken at face value as neutral scholarship, regardless of the manner in which it is presented.[/b][/quote]
Critic:
Is the "absurd" common use test what arms are protected, or whether they are protected at all?
If it is the former, as I understand it is, then it is not that absurd--it would allow the banning of truly dangerous firearms (by that I mean something that really is likely to blow up in your hand, or is so badly designed as to fire without deliberate action by the user) while allowing citizens access to truly effective means of defense against criminals or a rogue state (but I repeat myself).
It is absurd to take the position that the 2nd amendment protects the right to "keep and bear" anything from a pocket knife to an ICBM. At some point you have to draw a line, and as soon as you do that you will get policy wonks, activists and nutcases (but I repeat myself) arguing that the line should be 1/2 inch that way, or 3cm the other. In the end, if there is to be ANY regulation at all we have to have a rational test that is technology independent.
You could argue that the common use test is flawed because Obama + Reid + Pelosi could get a law passed that prohibited ANY new technologies from being sold to the general public, but my reading of the "common use" bit is such that common use by police or military would mean that those technologies would have to be allowed to trickle into the civilian useage subject to strict scrutiny--for example a Phase plasma rifle in a 40 megawatt range might well be impossible to use without taking out a good sized city and hence simply be unfit for general civilian use, unless government troops had cheap, ubiquitious force fields that could ONLY be overcome etc. etc.).
I also think there's a big difference between "Judicial Conservative" and political conservatism, but I think that most intellectual conservatives, if they thought about it, would prefer that the SCOTUS not make radical changes in the way the constitution was interpreted, nor issue opinions suggesting that large swaths of existing law are unconstitutional. While we might agree on the contents of such decisions, the societal turmoil that would ensue and the uncertainty would be very difficult.
At the risk of being a broken record, I'd like to take a swipe at how to make the "common use" work rationally. If the arm is suitable for our employees to use, then it's suitable for us citizens. So if an M-16 is in common use by the army, then it's OK for the soldier's employers to own. Remember the Article 1 Section 8 mission definition statement for the militia. Further apply the Constitution's prohibition on titles of nobility (which in the British system, impinged on the right to bear arms and the types to be borne) - our employees (from elected officials on down) certainly have no more rights than we citizens do. M-16s meet the further logical test found in the plain text of the 2nd Amendemnt - that they can be borne ("and bear"). ICBMs don't. The object here is that to be considered "well-regulated" (i.e. mission ready or combat capable) under the 2nd Amendment, the militia must possess and be able to effectively use said arms to perform their assigned missions (again see Article 1 Section 8).
I'm with RKV. At the very least, any weapon suitable to an individual rifleman in a body of infantry should be protected by Amendment 2. That's even a workable test, with plenty of wiggle room to control things like RPG's as squad-level weapons rather than individual weapons.
Scalia's "common use" test was a cop-out that sort-of followed the Miller precedent and left machine guns regulated.
-m@
Gura's work is masterful as always. Wilkinson should be looking for a rock to crawl under - he's got nowhere left to hide. I further note the marker Gura lays down regarding incorporation of the 2nd under the 14th Amendment. I suspect this is prolog to Chicago, and Nordyke and how they will play out with the Supes. Speaking of Supes, Gura for Supreme Court Justice!