I don't buy the constitutional argument for a 2d Amendment right to bear arms. I'm not an originalist, so I don't really care what the founders meant, but I am a textualist of sorts, and the introductory clause of the @A (about the "well-regulated militia") is hard to square with the idea that the right to bear arms is individual.
However, I also believe in the "living constitution" and not fighting lost battles, so, as I said before, let the gun nuts have their AR-15s, and if the S.Ct wants to overrule Miller (holding taht the 2A only establishes a collerctive right to bear arm in the context of a well-regulated militia) and make the 2A mean that there is some sort of individual right to bear arms with respect to federal law, I say fine.
Btw, Miller's not the only case that would have to go. The BoR on its face, including the 2A, only restricts what the federal govt can do. To get the BoR to apply to the states, the Court has to rule that an amendment is "incorporated," that it applies to the states via the 14A. There are specific cases on each of the applicable amendments in the BoR. Thus the 1A, the 4A, the 5A, the 6A, the 7A, and the 8A are all specifically incorporated. (The 3A, the 9A, and the 10A don't call for incorporation, though the 3A might if the states started quartering the National Guard in our homes . . . .)
Back in the 1880s, the S.Ct ruled that the 2A is NOT incorporated, and so does not apply to state regulation of guns. So even if the 2A prohibits federal gun control, it doesn't prohibit state gun control.
However, if the gun nuts want to get rid of state gun control,I say fine, give them that too. Having to incorporate the 2A and overrule the old case, the name of which I forget, is just an extra impediment that I point out because I'm a lawyer and therefore boringly legalistic.
--- Michael Hoover <hooverm at scc-fl.edu> wrote:
> >>> dhenwood at panix.com 01/30/06 9:48 AM >>>
> Dan Lazare had a piece in Harper's some years ago
> arguing that
> consensus of legal scholars now is the the gun crowd
> is right on the
> constitutional issue. But why not argue from
> principle, instead of
> from the ancient sacred text?
> I'm willing to concede on guns, even though I'm not
> a populist. Some
> regulation, on the order of a drvier's license,
> seems in order, but
> no outright prohibition. I don't see why the state
> should have a
> monopoly over arms. And I always loved the Workers
> Vanguard analysis
> of the Waco barbeque - it was the fault of liberal
> anti-gun nuts.
> Doug
> <<<<<>>>>>
>
> little second amendment *scholarship* existed until
> about fifteen years
> ago, in part, because issue appeared settled, the
> few supreme court
> decisions on record took dim view - to varying
> degrees - of 'individual'
> right position, miller/1939 - adams/1972 -
> lewis/1980...
>
> motivated, perhaps, by anti-gunner sanford
> levinson's (one-time new
> political science guy turned liberal democrat turned
> contrarian of sorts)
> argument bemoaning absence of scholarly debate on
> second amendment,
> flurry of research (some of it funded by gun lobby)
> produced quantity of
> articles in 1990s concluding/advocating
> individualist interpretation...
>
> such articles typically included quotations from
> likes of jefferson, madison,
> and mason on dangers of unarmed populace, many - if
> not - most of them
> approvingly cited madison's friend (and later
> hamilton aide in treasuary
> dept) tench coxe who ostensibly *proves* individual
> rights argument
> in editorial that he wrote for philly newspaper,
> said proof is twofold:
> 1) madison letter to coxe approving of his
> commentary (of which remark
> about second amendment was included in more general
> analysis of bill of
> rights itself), 2) absence of rebuttal to coxe's
> article (it was only reprinted
> in a couple of papers, could well be that few folks
> ever read the piece,
> one of my favorite approaches re. understanding
> politics of the time is
> to check how extensively was reprint of an article,
> comparatively few
> instances can be indication that one's writing has
> little - to no- resonance)...
>
> have always thought it interesting that madison's
> initial bill of rights proposal
> re. matter that became second amendment included
> statement recognizing
> right of conscientious objection to military
> service, admittedly execised
> from final version, it seems to make a for odd fit
> with individual right
> position, given that, i've long said that i don't
> like idea of living in a place
> where only the cops have guns (in fact, i think
> their weapons should be
> taken away form them)... mh
>
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