Philadelphia local NPR station hosted an hour long discussion on the second amendment on their show “Radio Times”. Enter December the 20th, 2007 as the date to go to the archive.  You can listen to the MP3 here.  Here’s the summary:
Does the 2nd Amendment give an individual the right to own a gun? In 2008, The U.S. Supreme Court is expected to hear arguments whether a municipal handgun ban violates the 2nd Amendment. At stake, legal observers say, is whether the Constitutional right to bear arms meant it for the National Guard or for individual citizens. We’ll debate this with DAVID KAIRYS, a law professor at Temple University and SANFORD LEVINSON a law professor at the University of Texas-Austin.
Pretty clearly David Kairys realizes what’s at stake with the Heller case. Sandy Levinson sort of trivializes the impact he thinks it will have, offering up the fact that state constitutions that are recognized as individual rights don’t place much of a bar on many state regulations of firearms. I don’t disagree that the short term impact of Heller is going to be pretty small in terms of dismantling the status quo as far as gun control goes, but it will have far reaching implications into the future if we win. It backs the anti-gun movement up against the Bill of Rights, and they know what the consequences of that is going to be. It won’t just be the crazy gun nuts who believe that words of the second amendment mean you have a right to own a gun, it’ll be the US Supreme Court that says that!
For those of you who don’t know Philadelphia, David Kairys was the architect of the city’s lawsuit against gun manufacturers when the city was run by then Mayor Ed Rendell. Sanford Levinson is one of the legal scholars who first adopted an individual rights view of the second amendment in his law review article “The Embarrassing Second Amendment”. Levinson isn’t what I would call a gun guy, but we probably wouldn’t be where we are today if he hadn’t gotten the ball rolling in terms of getting liberal scholars on board with taking the second amendment seriously.  Listen to the podcast. I found it to be worthwhile.
I just wish there was a more pro-gun view of the individual right argument.
There is, but you’re not going to get that from Sandy Levinson
Only on NPR could you get two gun control supporters and pass it off as a balanced debate on the 2nd amendment
The Liberal Socio-Fascists at NPR don’t want to admit
a Constitutional sea change is about to happen
with their 68 years of lies about the Bill of Rights.
It is TOO hard for them to swallow so they keep
having to try and and spin it.
*Sigh* The very first thing said was that no Supreme Court had ever ruled for the individual right. Even Miller did not state otherwise, indeed implied the individual-right view by finding the particular weapon could be banned for private ownership. Technically not coming out for individual, but implication is hard to overlook – except by those anxious to outlaw all guns not in Federal hands, as for example arguing the National Guard is the militia of individual states when it was Federalized decades ago.
Note – I do not own, indeed have never owned, a firearm. But I strongly believe an individual right exists, and it should be recognized.
Heller may not go our way. It should, the law is clear, the constitution is clear and the writings of the founders disclosing their intent is clear. However, this court has over the last several decades been very loath to confirm individual rights of any kind at the expense of state power. No matter the make up of the court at the time.
This court isn’t demonstrably different than the one that gave us Kelo v. New London. Perhaps Heller will change that, I hope so. But as of this point in time, it is not a certainty nor even a probablility one could bet on with any degree of confidence.
This Court has been a demonstrated
advocate of the 1st Amendment which surely
comes at the expense of state power
Kenneth Starr has stated that facet
of the court.
In the Kelo case it was the Liberals on the
Court that gave that case the majority.
And Kelo was WRONGLY decided!
Kennedy has been the swing voter
and has went with the Conservatives
on many many cases.
Certainly a landmark 2nd Amendment decision
at anytime 1937 to 1971 would have been a big upset
for us individual rights constructionists when the Court
was really an engine of liberalism.
I appreciate Sebastion’s comments. If the Court upholds the DC Circuit, maybe it really will lead to a sea-change in the future. But my point is that no one now knows what the future will bring. As I said on the show, Brown v. Board of Education made almost no difference until Congress passed the Civil Rights Act of 1964, and even now reputable scholars will say that it has made almost no difference in most of the United States, where schools are basically as segregated, though not by overt force of law, as they were 50 years ago. It is basically foolish to offer confident predictions about the consequences of practically any case decided by the Court, especially when it is sharply split, as will almost certainly be the case. That is really all I was arguing yesterday. It is hard enough to gain accurate knowledge about the present and the past. The future is a far greater mystery, unless one has a reliable crystal ball (which I do not have).
I really wouldn’t describe myself as a “gun controller,” though the reasons are largely political: I think that most “gun control” measures are symbolic and doomed to be both 1) ineffective and 2) likely to drive otherwise Democratic voters into the waiting arms of the Republican Party. As to the first, I think the best book is Jim Jacobs’ book several years back. As to the second, one simply has to read the literature on the rise of the “Reagan Republicans.”
sandy levinson
I appreciate you took the time to comment Professor Levinson. I don’t really disagree about the uncertainty of the future. I’m not absolutely confident Dick Heller will prevail before The Court, but I strongly suspect he will, but probably to a very limited degree. To be honest, as a strong supporter of all the provisions in the Bill of Rights, including the second amendment, I’m very apprehensive about the future no matter which way this goes. I have an idea in my head about the type of cases that should move forward if Heller should prevail, but I highly doubt it’ll all proceed according to any neat plan, and that’s the scary part.
Of course, that’s also what makes our constitutional republic so interesting.
That is how I feel as well.
It is all or nothing with the Bill of Rights.
Nothing can be piecemeal about it you cannot roundly
support 9 of the Amendments and leave one out.
It is disingenuous and wholly intellectually dishonest to accept
such a construction of original intent.
I like how the liberal Professors I encounter mark my grade down
because I won’t accept their proselytization.
One International Relations Professor started giving me C’s after
I brought up the atrocities of Nanjing after she kept harping on the
Evil American atrocities at Hiroshima and Nagasaki.
Okay whatever…..history is not about a one-sided truth nor a two-sided lie.
As I understand it, the Supremes in Miller never said that the gun in question (a sawed-off shotgun) could be banned because it was not a militia weapon. They said that there WAS NO EVIDENCE that it was, and they sent the case back to the lower court for that determination (SCOTUS does not hear evidence, they hear appeals only). Clearly they IMPLIED that they would uphold Second Amendment protections for militia style weapons only. Which, ironically, would protect ownership of machine guns, but not .22s! But the case ended right there because Mr. Miller had been killed a few weeks earlier and his co-defendant had disappeared.
IMHO the main problem is one of “standingâ€. There seem to be two types of 2A appeals: 1) criminal defendants who have beaten the main charge and now are trying to beat the gun rap, too. The courts don’t have much sympathy for these defendants because it would be very difficult to successfully argue that the 2A prevents the police from disarming a violent criminal. 2) Ordinary citizens who bring suit to restore their 2A rights. And ironically the Courts turn aside these cases, too, because the plaintiffs lack “standingâ€: they’re not threatened with jail or fines.
So Parker/Heller was cleverly crafted with six defendants, with the expectation that some of them would be dropped along the appeals process. Which is exactly what happened, and oddly enough, some of the courts disagreed on which of the plaintiffs had standing and which did not! In the end, only one plaintiff (Dick Heller) made it to the Supreme Court, because only he had actually gone to the local police station to try to register the handgun he carried as a licensed security guard, and he had been threatened with jail if he brought his handgun home. That threat was enough to give him standing.
Which, ironically, would protect ownership of machine guns, but not .22s! But the case ended right there because Mr. Miller had been killed a few weeks earlier and his co-defendant had disappeared.
Interestingly, the military does use .22LR firearms, but they aren’t common soldier equipment. Suppressed versions are used by special forces because they can fire with virtually no noise.
No evidence of the effiency of a short-barreled shotgun?
Short-barreled shotguns were SO effective in trench warfare in WWI
that Kaiser Wilhelm petitioned the International Courts to have them outlawed.
The Justices of the Hughes Court could have studied this.
Marcus:
What the court said was that it couldn’t take judicial notice of an SBS’s military utility. Certainly we know it has such a utility, but the court sent the case back to the lower court to make that determination. Miller was dead by the time his case was heard.
:)
http://armsandthelaw.com/archives/us_v_miller/index.php
What a pleasure having Sanford Levinson weigh in here. By the way, I’m sorry the Philly mod called you “Stanford” several times (at least before the first break).
My take? David Kairys was off the mark in several instances, including:
1) David’s prediction of the “huge scope” of an individual rights ruling came across as “alarmist” and perhaps somewhat insincere.
2) David’s numerous references to this case creating a “new right” wholly assumes there was no such right to begin with. He’s flatly wrong there. The founders did not create any “new right”, nor would the SCOTUS if they ruled individual right in DC v. Heller. The right to arms demonstrably stems from an inalienable common-law right to defense…that was even outlined in the English bill of rights in the late 17th century. So David’s mention of some “new right” suggests that he is either uninformed or dishonest.
3) As DC did so disingenuously in their cert petition, David couches and contexts this issue in terms of public safety. In so doing, he fatally assumes that gun control legislation necessarily enhances public safety.
4) He even takes a stab at the so-called “gun show loophole” (private firearm transfers) by stating that such transfers are directly responsible for criminals getting guns, AND as if laws requiring background checks for private transfers would somehow cause otherwise law-breaking persons to abide such a background check law.
In general, David’s position seems to foretell that he wants it both ways…he speaks to the right or the need of people to keep guns for defense, yet apparently supports the District’s complete prohibition of functional firearms. I found most of his arguments to carry rather little weight.
Finally, several people have mentioned registration as a reasonable regulation…including Don Kates (1983), judge Silberman in 2007, etc. I am more than a little uncomfortable with firearm registration (particularly a federal registry) being argued as reasonable. To me such a measure flies directly in the face of the spirit and purpose of the 2A and the militia it enables. If the 2A boils down to enabling “the people” to overturn a despotic or tyrannical government, it does not bode with logic nor reason that such a very government would have access to the number, type, caliber, etc., as well as the names and residences of owners….the very people who via the 2A were intended to be enabled to overturn such a government.
Professor Levinson used the analogy of Brown v. Board of Education, but in my estimation Miranda is a much better analogy.
We could certainly arrest and convict far more criminals — thus saving many more innocent lives and protecting against crime, if we were willing to ignore and violate the right to an attorney — merely NOT TELLING the suspect certainly doesn’t violate any rights from a purely literal point of view, nor is there any direct Constitutional requirement for the government to SUPPLY an attorney.
But Miranda sets up the warning, and the actual provisioning of the attorney for the suspect and we choose to do this in an abundance of caution to avoid mistreating innocent (and guilty?) people.
Taking the Right to Keep and Bear Arms (arguably both the oldest AND the most important* right) in a futile attempt as public safety is far worse. It is worse because it infringes the rights of ALL the law abiding due to the bad behavior of some few criminals.
* The Right to Keep and Bear Arms is arguably the most important since it is the one that protects all the others. No right has EVER been secured without people of good will, willing to take up arms, secure that right, and share that right with others.