Supremes & The Second Amendment: 'A Little Knowledge is Dangerous'
That's the conclusion of Second Amendment scholar and Roger Williams School of Law Professor Carl T. Bogus writing on the American Constitution Society's blog on this week's Supreme Court oral arguments on whether the District of Columbia's ban on handguns violates the Second Amendment. Observing the "individual rights" tenor of the majority of the Justices' questions, Professor Bogus writes:
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 Heller v. District of Columbia 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.
Professor Bogus observes that this lack of appreciation seems to extend to presumed "swing vote" Justice Anthony Kennedy, whose questioning seemed more steeped in the television scripts of Fess Parker as Davy Crockett than the historical writings of James Madison as Founding Father. Questioning the District of Columbia's lawyer, Walter Dellinger, 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?"
The answer, in a word, is no. Writes Professor Bogus:
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....
It's accepted wisdom that the presumed outcome of a Supreme Court case should not be based on the nature or tone of the questions offered by the Justices. For the residents of the District of Columbia, and others across the nation protected by local, state, and federal gun laws, one can only hope that this adage holds true, and that in the interim the Court will employ more than `a little knowledge' on the Second Amendment before making its decision.
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If the 2nd Amendment was meant to help keep the slaves down, they why did ALL these NON-Slave states have the Right to Keep and Bear Arms spelled out in their Constitutions? Most of these, by the way, guaranteed an individual's right to keep and use arms for self-defence.
Connecticut: 1818
Indiana: 1816
Kansas: 1859
Maine: 1819
Massachusetts: 1780
Michigan: 1835
Missouri: 1820
Ohio: 1802
Pennsylvania: 1776
Rhode Island: 1842
Vermont: 1777
http://www
" I think they will have no choice but to uphold each state's or localities rights to enact their own gun laws for the good of their citizenry.
Josh ~ As always, your thoughts on this issue are a pleasure to read! I agree with you, too. And further, I think the context in which the 2nd Amendment was worded & conceived is vital to understanding its meaning & who or what it's designed to give power to. Honestly, I really don't believe it was meant as a blanket-OK for civilian ownership of all types of firearms (ie., our central gov't has had to step in when necessary, as in the federal firearms laws). No one with any realistic, rational thought processes would really believe that the historical authors were thinking about guns in the way in which we must now discuss them ~ they would have no clue as to what weaponry even minors can sometimes get their hands on ... & I hope the Justices are considering this important issue from every angle possible! If they do, I think they will have no choice but to uphold each state's or localities rights to enact their own gun laws for the good of their citizenry.
"No one with any realistic, rational thought processes would really believe that the historical authors were thinking about guns in the way in which we must now discuss them..."
I love it!
When it favors the anti-rights campaign, it is called "common sense."
When it opposes the anti-rights campaign, it is called "Judicial Activism(t
So Josh, who are the anti's going to appeal to once SCOTUS rules in favor of true "common sense?"
The Constitution should have, instead, given us the right to arm bears.
Oh my Gawd Josh is running a Raciest organization!
VPC judges states by how many blacks were murdered solely . I can not believe no one has called the VPC out on this. This is singling out a race!! This is wrong, I gave the information to a friend at the NAACP, she is going to give the information to the Georgia head of NAACP.
Expect some calls Josh.
You are right. Gun Control has always been highly racist in nature. Examples:
1. The Jim Crow laws in the South during Reconstruction. They were passed to disarm the former slaves, the newly freed African Americans.
2. The attempt to disarm the Native Americans. The White Man was even guilty of genocide against Native Americans. We should remember how General Gage gave the Native Americans blankets, which were contaminated with small pox virus. Gun control was another part of the systematic genocide of native Americans.
3. In NAZI Germany, the Jews were forbidden to own firearms. It would seem the reasoning was, the Jews would not be able to resist being sent to the death camps.
4. In the state of New York, the Sullivan Law was passed as a means of preventing the immigrants from owning firearms. This had the purpose of leaving them defenseless against the established order.
Gun control, as advocated by the Violence Policy Center, has definite racist intent.
The NAACP only goes after Conservative groups. Anyone else can say what they like.
You folks who've responded here need no reminding, but I'm an anal sort of person about this. Most of the readers of HP are, or seem to be, liberal Democrats. Which political party is the worst about our 2d Amendment RIGHT? Democrat! I've been a single-issue voter for years, because I use that issue as a sounding board about other issues. I've not always been happy with it, but I'm Republican. If I thought the Libertarians ever had a shot, I would probably change, though there are issues with them that make me nervous. But, how anyone who loves their guns could remain a Democrat is way beyond me.
Semper fi
Well, since your current gig is about to be made irrelevant, might I suggest using that FFL of yours to buy some stock and set up a store front?
Personally, I'd love a Walther PPKs. If you want to invest in the paint, I'd prefer it in Kelli green. :)
I would have to say anyone using Mr. Bellesiles research is a questionable academic and is obviously not above lying to get there point made. So he and Josh and the Bingo group must be great friends.
As I said in another blog, this is the ultimate state's-rights issue. Militias were an instrument of states, not the federal government. If you look at all the quotes given here from the founders, they pertain to the right to bear arms as a defense against tyranny. Indeed, the reference in this amendment to militias is about states' ability to rebel against federal leader who would infringe on liberties of the people - hence its place of second, only behind the rights of free speech.
If states (or lesser juristictions within them) want to ban or regulate individual gun use (and really, the amendment says "arms" which are any instrument of warfare - think about that), that is their prorogative. This amendment only limits the Federal government from abridging such rights.
No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
William Rawle 1791
"If states (or lesser juristictions within them) want to ban or regulate individual gun use (and really, the amendment says "arms" which are any instrument of warfare - think about that), that is their prorogative. This amendment only limits the Federal government from abridging such rights."
However, you are forgetting the Fourteenth Amendment incorporates the Bill of Rights at the state level. In other words, the states cannot infringe on any of the rights guaranteed in the Bill of rights.
Again, using the states rights argument, to deny rights guaranteed by the Bill Rights, is a BOGUS argument.
Wow! Talk about your elitist BS. How dare this guy shake his finger at the Supreme Court of the United Staes and say they are trading in "laywer history?" If he is such a scholar, why isn't he up there? Oh, because he bases his arguments on disgraced "academic research" which turns out to be creative writing.
This is standard nanny state tripe: "I know what's best for you so shut up and let me wrap you in a cozy blanket." No, thank you.
You have the right to your opinion and to express it in an effort to sway your legislators; that's what the first amendment is about (in spite of Senators McCain and Feinberg). That right has been clarified and codified by the Supreme Court mostly in the 20th century. They are about to do the same with the second amendment. Then, you can use your first amendment rights again to cry over spilled milk.
I respect your passion. I just wish you could focus it on whose standing behind the guns that are killing innocent people. That is the best way to solve the problem of violence; focus on the criminal.
Sincerely,
John Buckley
It would seem appropo to refer to the 'collective rights' interpretation as a BOGUS argument (pun intended). At the time the Constitution was written, the whole of the people were considered the militia. In fact, in the Militia Act of 1792, the people were required to present themselves for militia duty, bringing their own firearms and ammunition.
The term 'well regulated' meant well trained, it had nothing to do with regulations. Why would the Founding Fathers consider the Right to Keep and Bear Arms essential to having a well trained militia? The answer is simple: Shooting is a life-long learning experience. Marksmanship is not learned in a mere 8 weeks of basic military training. Good marksmanship and gun safety are learned over the course of years, and one does not stop learning.
Since the time of the founding fathers, there has been very little Second Amendment jurisprudence. In this vacuum, bogus arguments aimed at negating the amendment have been cooked up and widely circulated by the liberal press. Such lies don't stand up very well at the Supreme Court, as evidenced by the D.C. Vs. Heller oral argument this week. Thanks to the internet, citizens can see for themselves by listening to the oral argument at http://www
Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.– James Madison
The Constitution shall never be construed … to prevent the people of the United States who are peaceable citizens from keeping their own arms. – Samuel Adams
Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest. – Mahatma Gandhi
Josh shame on you still relying on bogus information conjured up Michael Bellesiles, the disgraced historian. We all know his work is nothing but fabrication. He received the Bancroft Prize but it was revoked and he was forced to resign from his job. My question is Josh why do you keep attempting to pass his work off as legitimate information?
Hey your boy Dellinger did a bang up job. He got caught in a big lie by Justice Roberts embarrasing huh?
Well Josh the good news, you can finally use the FFL you just renewed. Anyway keep up your postings and we will keep responding.
Warmest regards
~Melody~
Here's the Amicus brief in response to Bogus's claims:
http://tin
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