green-grizzly
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- Jan 12, 2008
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Bogus is a law professor and one of the big wheels in the anti-gun movement. I hope Justic Kennedy gets to read this article; I don't think he likes being told he is a stupid rube. This is some high quality lawyering on Bugus' part; if the judge does not agree, denigrate his intelligence. In public. Before you get the ruling.
We can only wish we had an advocate named "Bogus."
Note that effective gun control in his mind really means gun prohibitiion. I think he just admitted that anything short of that is innefective. So even if we get a weak standard of review, we can use this Bogus article to argue that any reasonable limitations on the right are worthless and therefore not reasonable.
I like where he says the oral arguments were "ominous."
http://www.acsblog.org/guest-bloggers-praying-for-a-second-shot-on-the-second-amendment.htmlPraying for A Second Shot on the Second Amendment
by Carl T. Bogus, Professor of Law, Roger Williams University School of Law
For those of us who believe that the collective rights model is the correct one for the Second Amendment – that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia – oral argument in District of Columbia v Heller was ominous. Based on comments at oral argument or previously, I count six likely votes for the individual rights interpretation: Scalia, Thomas, Kennedy, Breyer, Roberts, and Alito.
The Second Amendment provides a quintessential example of the adage “a little knowledge is dangerous.” Those who know a little history tend to come out on the individual rights side. Typically, it is only after one is really steeped in the history of the Founding era that one is converted to the collective rights view. Several historians have written about this phenomenon. They are particularly disdainful of lawyers doing “law office history” – failing to adequately understand the period under examination – and making a variety of errors as a result. One error is not appreciating that people in the eighteenth century held many different views and distinguishing between statements that represented the zeitgeist of the time and those that represented minority views. See, e.g., Don Higginbotham, The Second Amendment in Historical Context; Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism.
Undoubtedly, these historians cringed at comments by Justice Anthony Kennedy, who seems to have learned history from Fess Parker’s memorable portrayal of Davy Crockett in the 1950s Walt Disney television series. Being of the same generation as Justice Kennedy, I am fully sympathetic. For anyone who was then a boy, the image of Fess Parker adorned in a coonskin cap, with his trusty musket “Old Betsy” slung casually over his shoulder, will live forever. Nonetheless, it is quite something to believe that James Madison and other members of the First Congress had a similar image in their heads when they wrote a provision that begins with, “A well regulated Militia, being necessary to the security of a free State....”
When Walter Dellinger, counsel for the District of Columbia, mentioned – quite accurately – that in the eighteenth century the phrase “keep and bear arms” had a military connotation, Justice Kennedy asked: “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” No, it didn’t. After all, in 1791 no one was trying to take muskets out of the hands of frontiersmen or hunters (who more often trapped than shot game). Madison was no more likely to worry about protecting frontiersmen from federal disarmament than he was to worry about protecting farmers from laws prohibiting the growing of crops, or mothers from laws prohibiting them from nursing their babies.
Even the British did not disarm American frontiersmen. On the day the shot was heard around the world, the British were focused on confiscating militia munitions in Lexington and Concord. They were particularly interested in one barn that they believed held seven tons of gunpowder. David Hackett Fishcher, Paul Revere’s Ride at 85 (1994).
What Virginian Madison was worried about when he wrote the Second Amendment was the possibility of Congress allowing the militia – upon which the South relied for slave control – to become “disarmed.” Fellow Virginians George Mason and Patrick Henry had accused Madison and his fellow members of the Constitutional Convention in Philadelphia of giving Congress exactly that power when they wrote a document that allocated the lion’s share of authority over the militia, including the authority to “arm” the militia and thus conversely to disarm it, to the national government. See Carl T. Bogus, The Hidden History of the Second Amendment. The prospects of slave revolts were even more terrifying than grizzly bears – even though Fess Parker did battle only with the latter.
I suppose images of John Wayne and the Wild West have also done their share of damage. The Justices might be interested in the following observation by Garry Wills: “[T]hose entering the towns had to come disarmed, since it was against the law for anyone but law enforcement officials to carry a gun.” Will added: “The West was not settled by the gun but by gun-control laws.” Garry Wills, Reagan’s America 106 and 461 (1987).
Several Justices seemed to think that finding that people have an individual right is no big deal. “Reasonable” or “sensible” gun control laws will still survive because every right is subject to restriction. Both plaintiff’s lawyer and Solicitor General Paul D. Clement encouraged such views. The problem is that the only gun control regulations that significantly reduce homicides, aggravated assaults, and suicides are those that reduce the number of handguns in general circulation. Research data do not support the conclusions that lives are saved by waiting periods, background checks, firearm training programs, or other programs that do not directly affect the number of handguns in general circulation. Strong gun control is effective while the modest measures so often termed “reasonable” or “sensible” do not. See, e.g., David Hemenway, Private Guns, Public Health at 169-171. Meanwhile, we know that the law under challenge – the District of Columbia’s handgun ban – reduced firearm-related homicides within the District by 25 percent and firearm-related suicides by 23 percent. Colin Loftin, Ph.D., et al., Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia.
Two justices who clearly read history carefully were Souter and Stevens. They understood, for example, that the right-to-have-arms provision in the English Bill of Rights of 1689 was not about whether government could regulate firearms but rather which branch of government – Crown or Parliament – could do so. Justice Breyer’s questions were intelligent and well-informed, but I read him as also likely endorsing the individual rights position. He seems to believe doing so does not unduly constrain firearm regulation because the right is still subject to reasonable restriction, a view encouraged by liberal scholars Laurence Tribe and Erwin Chermerinsky. But once the Supreme Court declares that the Founders intended to bequeath a sacrosanct individual right to own guns – instead of intending to ensure that states had some minimum right to armed militia to provide for their own security – the political impact of the Court’s decision will preclude effective gun control from even being seriously considered.
Those of us who are convinced that the collective right model is correct, both historically and prudentially, can only hope that some of the justices will reconsider their tentative views and ultimately decide against throwing over long-standing precedent of reading the Second Amendment as militia-based.
We can only wish we had an advocate named "Bogus."
Note that effective gun control in his mind really means gun prohibitiion. I think he just admitted that anything short of that is innefective. So even if we get a weak standard of review, we can use this Bogus article to argue that any reasonable limitations on the right are worthless and therefore not reasonable.
I like where he says the oral arguments were "ominous."
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