Friday, February 21, 2014

The Embarrassing Second Amendment

The Embarrassing Second Amendment: Reprinted from the Yale Law Journal, Volume 99, pp. 637-659

This treatise, authored by Stanford Levinson, who describes himself  as a "a card-carrying A.C.L.U. member who doesn't own a gun", argues that the Second Amendment of the United States Constitution limits the government's authority to regulate private gun ownership.

The author seems, at times, to be almost embarrassed to find himself presenting an opinion that, when compared to the other Constitutional Amendments in the Bill of Rights, patiently and determinedly proves that the Second Amendment confirms a right for the individual to possess a firearm.

This opposes the general "liberal" interpretation that it allows the states to field a militia.  And then he explains why the constitution would not have been established to support "states rights" as opposed to an "individual right".  (Essentially, if the Federal government was prohibited from restricting 2nd amendment rights .. or any other constitutional right ... to the individual, then the States must necessarily be similarly restricted.)

Why am I presenting this here?
A few years ago, when the "Old Blogspot" software was in effect, I included a number of links on my sidebar which I considered important to readers who were interested in Second Amendment resources.  Upon the advent of the "New Blogspot" software, all of those links went away.  Since then, through a combination of ineptitude and lethargy, I have been unable to re-implement those sidebar links.

Recently, I've decided that most readers might benefit by having some of these intellectual resources being brought to their attention, so perhaps a few might wish to visit the references and, if they decide that the information might be personally significant, they can bookmark the reference links for themselves.

Personally, upon rereading Levinson's writings, I discovered that some of the principles which I had written in these spaces had been strongly influenced by his 2005 statements of opinion.

Here are just a few of them, paraphrased:

*  "A lot of murders are committed by guns; the cost of social disorder is too great, wouldn't we all be better off if there were no guns?"    No, guns are often used by individuals to defend themselves, their homes, their families.  Despite the 'social disorder', the value of private ownership of firearms far over-rides the costs.  Some things are just to valuable to dispense with them.

* (going back to a previously cited question): "The constitution specifically forbids the Federal Government from 'abridging' the right to own firearms; it doesn't say anything about the states."  Again, other amendments are generally considered to be binding on states as well as Federal government.  Those functions which are forbidden by the Federal government are equally as binding on the State governments.  (As Levinson points out, there is a philosophical dichotomy at the municipal lever; witness the "Morton Grove" ordinance.)

* "The Miller Decision; didn't it established that 'short barreled shotguns' are clearly illegal?"  Direct quote from the Levinson:  "Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use."  In fact, short barreled shotguns were used during WWI; they were called "Trench Guns", and since the fact that "military weapons" were at the time deemed an acceptable defense to the legality of owning a specific firearms .. well, but Miller skipped town and presented NO defense, and lacking any defense at all, the court was obliged to find for the plaintiff.  In that single case was established a precedent which succeeding courts were required to consider.  That's why we ended up with the "Ruby Ridge" fiasco.

As you can see, many of the points which Levinson discusses are seminal in Second Amendment debates even decades after the fact. 

I won't bother you with too many examples.  Take the time to read the original source document about why the Second Amendment is "embarassing" ... not the least of which is that, in the minds of most Constitutional Scholars, they really don't much care about it.

But you do, and I do.

Read the whole thing.  You'll be glad you did.


Anonymous said...

I think the left gets to pick and choose which parts of the constitution they like and which they can ignore.

Jerry The Geek said...

Actually, I think that was the point of the treatise.