Looks like Saul Cornell and Dennis Henigan have gotten together to disparage the Second and Fourteenth Amendments in this months edition of the National Law Journal. Saul Cornell argues the 14th Amendment has no problem with disarmament, as long as it’s done equally:
There are some facts that are beyond dispute. Although there is ample evidence that the 14th Amendment was widely understood to bar the selective disarmament of blacks by Southern governments, there is absolutely no evidence to suggest that anyone believed that the 14th Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety.
The argument would seem to be that because the post-reconstruction courts effectively eviscerated the 14th Amendment, so that Jim Crow could properly imposed on the South, that of course means there was never intended to be any right-to-bear arms, by blacks or anyone. This strikes me as a weak argument given our modern understanding of the amendment, and just so there’s no misunderstanding about the case which Saul Cornell cited, you can read about it here.
Backing up Saul Cornell is Dennis Henigan, who says that guns are such a menace to society that it justifies essentially ignoring, or largely ignoring, one tenth of the Bill of Rights:
There is at least one respect in which the new right to have guns is vastly different than other rights. A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. However the Court decides the incorporation question, its discussion of Second Amendment issues inÂ McDonald and its future Second Amendment jurisprudence must recognize that the Second Amendment is, indisputably, the most dangerous right.
I don’t know about that Dennis. Ideas can be some of the most dangerous things humans can generate, and speech is the primary mechanism by which these ideas are spread. I mean, how many people did this idea kill? Â Or this one? How long did this idea relegate a significant portion of the American population to second class status? This man’s speech and a set of box cutters killed 3000 Americans and dragged us into a decades long war.
Gun are potentially dangerous. No one denies that. But it’s bad ideas, conveyed by speech, that’s responsible for the worst humanity has to offer. In this country, we protect speech, of both good and bad ideas, in the belief that the best way to counter bad ideas is to challenge them with good ones. Does that always work? We accept a lot of risk allowing free speech in society, and most Americans, including me, wouldn’t have it any other way. If the best defense against bad speech is good speech, maybe it’s not too far of a stretch to suggest that the best defense against bad guys with guns is more good guys with guns. Why is that so alien to our constitutional framework?