Both sides in the gun debate are acting like morons

19 Dec

Here’s today’s COMMENT FROM AN OLD FART: The U.S. Constitution is a bit like the Bible. People want to select passage from both documents which suit their purpose and their intent. People don’t want to deal with the parts that they don’t agree with or that they find disagreeable.

Annotated Constitution

Amendment 2 Table of Contents




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

Slate published this interesting 2001article, What Does the Second Amendment Say About  the Right To Own Guns?

State law and state constitutions may change, but the progress of Second Amendment jurisprudence is glacial. As a matter of pure legal precedent, the Justice Department likely has the winning argument in this debate simply because the last time the U.S. Supreme Court ruled on this point was in 1939. In United States v. Miller, the court held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the “well regulated militia” provision of the Second Amendment. The court stated that:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The Supreme Court has turned down every opportunity to accept a new case and clarify the question of whether Miller established a definitive test requiring some connection between guns and state militias or whether it was announcing a one-time-only rule about Jack Miller and his shotgun. Still, the lower courts have followed the first view, and, in the wake of Miller, virtually every lower court has accepted the state militia/collective rights test as a settled point of law. While a fascinating normative debate over whether or not the right should be an individual one rages in the academy, in think tanks, and around the candy machines at NRA headquarters, the Second Amendment issue is not a close call in the courthouse. Eminent legal scholars, including Sanford Levinson and historians such as Emory’s Michael Bellesiles, have done some staggering scholarly work on the subject of the original intent of the Framers and the prevalence of guns at the time of the founding of the country. [Updated May 8, 2002: Bellesiles’ methodology has recently come under fire by constitutional scholars.] None of it has induced the Supreme Court to step into the fray.

The modern Supreme Court has invalidated federal gun laws, most recently in United States v. Lopez, but not on Second Amendment grounds. Nothing about the decision in Lopez reinforces an individual’s right to bear arms; it merely curbs congressional attempts to regulate guns, which is by no means the same thing.

Why do opinion surveys show that most American citizens believe in the individual rights position? Some legal scholars call this widespread public conviction a “hoax” and “false consciousness.” Some contend that the NRA has done a spectacular job of spinning an individual right out of law review articles, John Wayne movies, and effective propaganda. Others argue that the personal right to a gun is nevertheless a right whose time has come and that it’s just a matter of the courts catching up to public opinion.

There are many proposals for “rational” gun control.

One blogger proposes the following:

A proposal for rational gun control

Although I would personally like to see as many civilian-owned guns eliminated from mainstream society as possible, I realize that this is not a politically realistic goal. Thus, I present my own plans for gun control that I would consider a valid compromise. Perhaps policy discussions can start from these.

1. A national system for registering guns and ammunition. Part of the reason New York City has stiff gun laws and high gun death rates is that anybody can go from New York to a state with less restrictive laws, get a friend who lives in the state to buy the guns for them, and take those guns back to NYC. (Yes, I am aware this is illegal, but it happens.) First, a national system would prevent this by scaring those “friends” into not buying the guns legally and selling them illegally, for if the guns are used in an illegal crime, that person can be held accountable. Second, a national system would be more helpful in tracking crimes after they have happened, to bring the perpetrators to justice.

2. Instant background checks on people attempting to buy guns or ammunition. Brady is still patchwork, and does indeed have its flaws in tracking felons. Felons and ex-cons should not have access to weapons, and many misdemeanors and juvenile crimes should also count against a person’s record.

3. Stiffer sentences for gun crimes. This has been the position of the NRA for quite some time, and it is certainly one with which I agree.

4. Gun education. Many guns are involved in accidents that could easily have been prevented by a little care or forethought. Perhaps gun purchasers should be required to take lessons in gun safety, at the purchaser’s expense. Again, the NRA has long been a proponent of gun education.

5. General education. Study after study has concluded that there is a direct correlation between lack of education and violent crime. Every dollar spent on education now will prevent countless dollars worth of crime damage in the future. Think of all the private and public funds used to pay for gun violence — hospital bills, funerals, insurance bills, the actual cost of buying firearms. Now invest that money in education, and watch the crime rate drop.

6. Hand grip ID tagging. This is technologically probably still in the future, but it would be a good goal to work for. The theory is, each gun is “registered” to one’s person palm prints (the legal purchaser of the gun), and only that person can fire that gun. If another person tries, the gun simply will not fire. Thus, stolen guns become useless, and cannot be used to harm anybody in the course of a crime.

What both proponents of gun control and those who advocate unfettered gun possession along with unlimited possession of ALL types of guns don’t want to acknowledge is that it ultimately goes back to the Constitutional process of a legislature enacting a law and the judiciary reviewing the Constitutionality of the law. Neither side may be happy with the result.


Prof. Eugene Volokh, UCLA Law School*  

I.              Text of the Second Amendment and Related Contemporaneous Provisions
II.              Calls for the Right to Keep and Bear Arms from State Ratification Conventions
III.              “The Right of the People” in Other Bill of Rights Provisions
IV.              Some Other Contemporaneous Constitutional Provisions With a Similar Grammatical Structure
V.              18th- and 19th-Century Commentary
       A.              William Blackstone, Commentaries on the Laws of England (1765)
       B.              St. George Tucker, Blackstone’s Commentaries (1803)
       C.              Joseph Story, Commentaries on the Constitution of the United States (1833)
       D.              Thomas Cooley, General Principles of Constitutional Law (1880)
VI.              Supreme Court Cases
       A.              United States v. Miller, 307 U.S. 174 (1939)
       B.              Dred Scott v. Sandford, 60 U.S. 393, 416-17, 449-51 (1857)
       C.              United States v. Cruikshank, 92 U.S. 542, 551 (1876)
       D.              Presser v. Illinois, 116 U.S. 252, 264-66 (1886)
       E.              Logan v. United States, 144 U.S. 263, 286-87 (1892)
       F.              Miller v. Texas, 153 U.S. 535, 538-39 (1894)
       G.              Dissent in Brown v. Walker, 161 U.S. 591, 635 (1896) (Field, J., dissenting)
       H.              Robertson v. Baldwin, 165 U.S. 275, 280 (1897)
       I.              Maxwell v. Dow, 176 U.S. 581, 597 (1900)
       J.              Trono v. United States, 199 U.S. 521, 528 (1905)
       K.              Twining v. New Jersey, 211 U.S. 78, 98 (1908)
       L.              United States v. Schwimmer, 279 U.S. 644 (1929)
       M.              Dissent in Adamson v. California, 332 U.S. 46, 78 (1947) (Black, J., dissenting)
       N.              Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (Jackson, J., for the majority)
       O.              Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958) (Frankfurter, J., for the majority)
       P.              Konigsberg v. State Bar, 366 U.S. 36, 49 & n.10 (1961)  (Harlan, J., for the majority)
       Q.              Dissent in Adams v. Williams, 407 U.S. 143, 149-51 (1972) (Douglas, J., dissenting, joined by Marshall, J.)
       R.              Lewis v. United States, 445 U.S. 55, 65 (1980)
       S.              United States v. Verdugo- Urquidez, 494 U.S. 259, 265 (1990)
       T.              Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992) (dictum)
       U.              Concurrence in Printz v. United States, 521 U.S. 898, 938-939 (1997) (Thomas, J., concurring)
       V.              Dissent in Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., joined by Rehnquist, C.J., and Scalia and Souter, JJ.)
VII.              Relevant Statutes
       A.              Militia Act of 1792
       B.              The currently effective Militia Act
       C.              The Freedmen’s Bureau Act (1866)
       D.              The Firearms Owners’ Protection Act (1986)
VIII.              Other Materials
IX.              State Constitutional Right to Keep and Bear Arms Provisions (Current and Superseded)
       A.               Sorted by state, though including both current and superseded provisions
       B.               Sorted by date, from 1776 to the present

Where information leads to Hope. ©                 Dr.

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