Large Guns Man Speaks
My good friend Large Guns Man sent the following:
Well I knew our nations gun laws wouldn't last forever but this piece of legislation is nuts. What's next banning sling shots and squirt guns?
The best part is Section 3 part L that bans...
"A semiautomatic rifle or shotgun originally designed for military or law enforcement use, or a firearm based on the design of such a firearm, that is not particularly suitable for sporting purposes, as determined by the Attorney General. In making the determination, there shall be a rebuttable presumption that a firearm procured for use by the United States military or any Federal law enforcement agency is not particularly suitable for sporting purposes, and a firearm shall not be determined to be particularly suitable for sporting purposes solely because the firearm is suitable for use in a sporting event.'."
Since when do firearms simply have to be for sport? Isn't a right to personal defense enshrined in our federal and state constitution? Are we all going to be limited to muzzle loading smooth bore muskets?
Did I miss the huge gun riot after the Clinton ban sun setted that requires such a broad weapons ban? What does this bill do to address the MILLIONS of these firearms already LEAGALY owned by law abiding citizens?
I know I will feel much safer when it's illegal to own or use any of these weapons. I sure wouldn't want people to be able to defend themselves from oppressive governments or criminals.
Now, LGM may have a point. When I read the 2nd Amendment, to me it says this:
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.
Now, most legal scholars would argue that the clause at the outset, about a well-regulated militia, means that none of the rest matters.
And I would argue that most legal scholars are full of oatmeal. The first clause is the REASON we have the right. But the right itself is still: "the right of the people to keep and bear arms, shall not be infringed."
Famously, the (otherwise) liberal Sandy Levinson exposed the nakedness of the left-wing emporer on this question, in his forthrightly titled "The Embarrassing Second Amendment." I was Sandy's colleague at UT-Austin when this piece came out, and Sandy was pretty well beaten up by the "rights conscious" lefties. They were very strong about defending rights they happened to agree with, but on the 2nd Amdmt they made up ridiculous arguments about why individual rights, in this ONE instance, were not important, and the Constitution didn't really mean what it seemed to....etc.
Of course, the Const meant JUST what it seemed to when it protected Daniel Ellsberg, or people who wanted to burn flags, or etc. (Don't get me wrong: Daniel E is fine by me, and people who want to burn flags are welcome to; just don't do it my flag, or on my property!)
Sandy happens to think that guns should be rather sharply controlled, maybe even prohibited in some instances. But the 2nd Amdmt MUST confer SOME individual rights, or else it just has no meaning. And, if we can selectively "nullify" parts of the constitution, at our whim....Well, John C. Calhoun didn't get to do it, why should anti-gun nuts?
So, Sandy said there is a perfectly good remedy: Amend the Constitution. Either strike the 2nd Amendment, or change it to read, "Only guns suitable only for sport can be borne by the people." (Okay, Sandy didn't say that last part; I'm just trying to make Large Guns Man angry. But Sandy did say: "You don't like the 2nd Amdmt? Amend it! You can't ignore it." Consistency. I give a guy a lot of credit for consistency. Sandy is a fine man.)
“...No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions...[we no longer need militias, but]...it is hard for me to see how one can argue that circumstances have so changed as to make mass disarmament constitutionally unproblematic.”
So, Large Guns Man, there is the answer: THE CONSTITUTION! LOVE IT OR AMEND IT.
Go shoot something for me, LGM. And then give me one of the hindquarters, so I can make some sausage or something.
A nice link, partly from Volokh and Reynolds...
Some stuff on actual paper:
Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989)
William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994)