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I’ve already discussed why I part with many of my liberal compatriots in my views of the Second Amendment. It was actually the topic of the very first episode of All Things Reconsidered. I have to say, all the local leftists shared my view of the amendment, the only contention coming from a conservative who didn’t believe I was being candid about my real views.
My views are partly influenced by liberal law Saul Levinson’s now famous article. I’m not at all sanguine about guns in particular, but the civil libertarians who have accepted the state power view of the Second Amendment undermine the integrity of the Bill of Rights as a whole.
Levinson isn’t alone.
Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right. “My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”
The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”
The Second Amendment says, “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.” (Some transcriptions of the amendment omit the last comma.)
If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.
The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”
Scholars who agree with gun opponents and support the collective rights view say the professors on the other side may have been motivated more by a desire to be provocative than by simple intellectual honesty.
“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”
A point well taken, except that Tribe doesn’t really need more attention. The consensus is that had somebody more liberal than Clinton been elected in the 90s, he would be on the Supreme Court. When he argued in Gore v. Bush in 2000, the justices all gave him deference that was unmistakable even when they argued with him. He doesn’t need to pull a stunt to get listened to.
And it’s a basic argument. From a legal perspective, “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” cannot be presumed to mean simply: the right of the people to keep and bear arms, shall not be infringed. Every word in a law is presumed to have meaning and purpose, and the first part should be presumed to have qualified the right in some way. That’s reasonable, and perhaps it’s reasonable to interpret the amendment to bar sawed-off shotguns and switchblades from protection because there is no reasonable purpose these weapons serve in a militia. But we don’t have a clue as to how the drafters intended to qualify or limit the right, and as with the other amendments, ambiguities should default towards individual rights rather than state power. It’s not a melodramatic argument. It’s a liberal argument.
I don’t own guns. But for the Second Amendment I would support outright bans on handguns and assault rifles. I’m not certain that these bans should withstand the Second Amendment.
I’m not certain, maybe someone will let us know, but I think that the Wailaki Tribe is having a fundraiser at Beginnings on May 26, and they will be serving food. The Redway fire department is having their 36 Annual Barbecue on May the 26. Beef and Pork. So It sounds like no one should have to cook this weekend.My suggestion would be have lunch with the Wailakis, then go to the KMUD party, then go to dinner at the Redway Fire Department, then go dance it all off to the Iron Maidens. But what are we going to do Sunday and Monday?
The fire department barbecue usually has a fire engine for the kids to climb on. It’s a fun event. My family will be there.
As for Sunday, well, isn’t the Kinetic Sculpture Race taking place? I can’t access the website to find out. Usually, the water crossing takes place on Sunday morning.
Okay, here’s the K.S.R. blog at the KHUM site.