Pistol Politics
The Federalist Society hosted an online debate HERE on the DC Parker case. It features Parker lawyers Alan Gura, Bob Levy (Cato), & Clark Neily (IJ). Also on board is Glenn Reynolds. On the wrong side– Brady Center’s Dennis Henigan, Coalition to Stop Gun Violence’s Josh Horwitz, and the crazy Ohio State professor Saul Cornell. It’s a must read!
Neily’s post is especially worth taking a look at: Though perhaps unintentionally, at the end of his post Prof. Cornell poses an interesting question regarding scope of power. The Constitution says nothing about automobiles, or indeed conveyances of any kind. Does this mean the government may ban all cars, trucks, motorcycles, bicycles, airplanes, etc. on a whim? Plainly not. Same thing with clothing, cooking utensils, and farm equipment. In every case, the government must have a valid reason for prohibiting or regulating the ownership of any given item. Sometimes that reason must be compelling; sometimes “substantial” is enough; and other times any non-insane reason at all will do. Unless Prof. Cornell is prepared to argue (and perhaps he is) that the text of the Second Amendment would have been understood by a “typical rational man on the street” to lessen — indeed, eliminate altogether — the constitutional protection accorded to “arms” as a class of personal property, then the entire debate reduces to a standard-of-review question: How strong a case must the government make when it forbids people from owning guns. Can we agree on that much? In other words, would Prof. Cornell and the other participants in this debate concede that Americans’ constitutional right to own guns is at least as strong as their right to own cars, clothes, screwdrivers, and hot tubs?
No obviously related posts.
Or for that matter how the federal government can ban arms as a legitimate exercise of its power to regulate interstate commerce.
“Pennsylvania’s radical constitution of 1776″
Egad. I never thought I’d see that phrase.
I thought “arms” also covered swords, knives, clubs, and other assortments of handheld weapons.
A “regular militia” seems to be an oxymoron as militias were mostly irregular troops.
[I only read about 75% of that brawl.]
I’m not surprised that the Anti’s had to almost exclusively resort to Strawmen, Ad Hominems, and Red Herrings to make their case. Cornell could barely stay on topic.
Cornell almost always goes to ad hominems. It’s just his style.
The “sophisticated collective rights view” that they’re now taking (“yes, it is a “right of the people,” not one of the states, but only for people in a well regulated militia,” has big historical problems (which I spell out in a law rev. article, Wm & Mary Bill of Rts Journal, a few months ago). It also has the logical flaw pointed out in the last century by Judge Cooley: the Bill of Rts was meant to hold the government in check. If the right is limited to enrolled militia, then the gov’t it was supposed to check, can eliminate the check at any time.
BTW, the 1776 PA constitution *was* radical (historians use that term to mean what was seen as radical back then). Basically, to get their state to vote for independence (with heavy opposition from Quakers and pro-British Philadephia merchants), patriots had had to rig things a bit. And then they rigged the constitutional convention — every county an equal number of delegates, Quakers kept out by an oath requirement, etc..
They came up with a constitution that essentially let every adult male, not just landowners, vote, had a unicameral legislature, and the first guarantee of an individual right to arms (VA’s constitution had a well-regulated militia clause).
Wow. I’m not a constitutional scholar. Come to think of it, the closest I’ve come to any sort of “law” was a warning from a cop to come to a complete stop at a 4-way. But after reading that, I see a royal spanking was handed down. The antis have to parse friggin’ syllables to try to weasel their way out of what a fairly plain sentence means.
As an amusing aside, if the ‘collective rights’ interpretation of the Second Amendment is correct then it’s arguably true that the phrase “the free exercise thereof” in the First Amendment refers back to “an establishment of religion” (for lack of anything else to refer to) and that therefore the Religion Clause protects the right of the States to have established churches, not any individual freedom of religion.
[...] Legal Bitch has more. [...]
Great post B. Somewhere I have a column written by an automotive journalist I admire that made the point that nobody “needs” a 500HP engine, or a turbo-charger. But we assume the right to have them if we want. He closes with a comparison to the right to bear arms, and concludes that gun owners are better situated to fend off government control because “at least they have a few words in the constitution unlike us.”
[...] Very interesting reading. [...]
Full Auto, this post was from Legal. She definitely deserves the credit for a great post!
That was FUN! I really enjoyed watching the anti-rights side twist, dodge, and hurl ad hominems. It’s nice to know that my opinion of Saul Cornell is shared by such an august group.
Thank you PersonFromPorlock, I’m been very curious about what the “collective rights” interpretation of the First Amendment might produce.
I’m afraid that the collectivists might actually enjoy the right of the States to have established churches, since then they could finally establish The Church Of Global Warming and make everybody attend services…
“I’m not surprised that the Anti’s had to almost exclusively resort to Strawmen, Ad Hominems, and Red Herrings to make their case.”
Thirdpower:
ALL Liberal arguments consist of those things. Liberals never argue with facts.
For the life of me, I have no idea how people like Saul Cornell can stand to look at themselves in the mirror every day.
While I understand a professor’s attraction to signing on board with what looks to be a long-term gig shilling for one of academia’s favorite hobby horses – to have to be so completely intellectually dishonest EVERY day must be soul crushing.
The only thing I can think of is that, just like Stalin and Mao, he thinks that there is a “greater good” for “the people” towards which he is working.
the standard gun-banner line would be that, in fact, we have very much less right to own guns than any of those other things. they usually base this on a compelling state interest to control “dangerous stuff” like WMDs, truckloads of dynamite, and Jennings .22’s.
me, i disagree and then not. clearly firearms can be dangerous stuff in the wrong hands, and the state has an interest in controlling just who gets to have them; felon disarmament, habitual-drunkard disarmament, and so on, are all fine by me. but i wouldn’t take that anywhere near as far as i suspect Cornell would. i fully agree that regular law-abiding Joe Schmoes should have the right to own .50’s if they can afford ‘em and can keep from pulling stupid, dangerous, and/or criminal stunts with them.
heck, i would even agree with licensing and registration, if i thought the government would use that information responsibly and not abuse the power that came with it. but i’ve been sorely disillusioned about the responsibility and integrity of U.S. government (at every level) over my years of living here, so i can’t. i’m sad to say that, but i must.
“For the life of me, I have no idea how people like Saul Cornell can stand to look at themselves in the mirror every day.”
If he was really an academic, with an academic’s devotion to finding the truth, that would be difficult. Try thinking of him as a public relations professional who spends his time *simulating* a legal academic, in order to create for the judiciary a *pretext* for ruling in favor of gun control.
Really, they don’t expect to win on legal merits, they expect to win on the basis of Justices sharing their dislike of gun ownership. But the judges need a way to rule against the 2nd without it being TOO obvious that they’re just tossing the Constitution aside.
unfortunately Cornell very much represents the norm for professors at our universities today. They are agenda driven, Gang of 88 for example, and little things like facts are just minor inconveniences to be ignored and brushed out of their way when they do not support the holy agenda.
Multi-author blogs really need to use avatars for readers to easily tell the different bloggers apart.
As PersonFromPorlock points out, I find one of the most compelling arguments that the right to bear arms is an individual right is that all of the other rights enumerated in the Bill of rights (or reserved in IX and part of X) are individual rights.
Multi-author blogs really need to use avatars for readers to easily tell the different bloggers apart.
What? the words “bitter” or “legal” don’t delineate enough? Who knew?
Voolfie:
My answer is that leftists like professor Scribble Scrabble are different.
The way I figure conservatives do not feel morally superior to liberals because of their conservative beliefs about the nature of man. It would be silly. I think that liberals are wrong—and their ideas dangerous—but that alone doesn’t make me a better human being.
On the other hand, many liberals and leftists I know feel morally superior to conservatives (they told me so or at least hinted at that). It is logical. They are “for the people”, aren’t they?
Once they feel so morally superior they start behaving accordingly. The professor looks at himself in the mirror every day and sees someone who has history and justice on his side. Everything else follows and the debate showed it perfectly. Getting squeezed by the opponents’ facts and arguments? Accuse them of intellectual dishonesty and change the subject.
I guess he sleeps just fine.
I do feel superior to leftists. I am superior to leftists.
I am superior to them because before I assume a position on a topic, I consider what the consequences, both intended and unintended to people will be in the reality of the world and human nature.
If those consequences be negative, I will not support that position. If a leftist even bothers to consider the consequences, which most don’t due to hubris, and they come to the conclusion that there will be negative consequences which will not justify that particular position they resort to force when possible and deceit when it is not.
So, yes, I am superior to them. So is damn near everybody with a conscience.