More From Erwin Chemerinsky

He was quoted in the ABA law seminar just one post ago, and now I find Prof. Chemerinsky in the OC Register. Now keep in mind this was a law professor that was being sold as a legal expert on this topic:

California law generally prohibits individuals from carrying concealed weapons. Such laws are common throughout the United States.

Excuse me? This isn’t true in California, and it’s not true at all in the rest of the country. A total prohibition was not the issue in Peruta, it was the interpretation of what constituted “good cause” to apply for a carry license. Illinois remained the last hold-out on the issue for several years, and they recently started allowing licensed concealed carry when the 7th circuit court of appeals struck down the prohibition. How can an “expert” on the Second Amendment not know this?

From 1791 until 2008, the Supreme Court always had held that the Second Amendment means what it says and that it protects only a right to have firearms for purposes of “militia” service.

Name the case where the Supreme Court said this? There isn’t one. Even the Miller Court did not go this far. I’m not going to rehash all this, because all the relevant scholarship on the matter was presented to the Heller court, and we prevailed. This is now settled law, and Chermerinsky is on the other side of it.

Moreover, in District of Columbia v. Heller, the court clearly indicated that laws prohibiting concealed weapons are constitutional. Justice Scalia, writing for the majority, used laws prohibiting the carrying of concealed weapons as an example of the type of regulations that are permissible under the Second Amendment.

Read Heller. Please dear God would you people read the f**king opinion honestly? In Heller, the issue of concealed weapons was discussed several times, and every time in the context of the state having the power to regulate the manner of carry. In every one of those cases, concealed carry was allowed to be prohibited because open carry was the more socially acceptable method of carry, and was readily available to people “carrying for a particular purpose—confrontation.” In Heller, a right to carry a firearm for self-defense outside the home was assumed. The other side continually cherry picks a few sentences out of the decision without any willingness to consider the decision as a whole. Unfortunately for us, there have been plenty of federal courts that have all too willingly embraced this cherry picking approach.

13 thoughts on “More From Erwin Chemerinsky”

  1. “This is not settled law, and Chermerinsky is on the other side of it.”

    Not or now?

  2. Cherry-picking individual sentences while ignoring the opinion as a whole ranks right up there with quoting legal precedents from dissenting opinions.

    Sounds like: “A well-regulated … right … to keep and bear arms, shall … be infringed.” See? It says it right there! We can ban anything we want! It’s right there in the 2nd Amendment! [/sarcasm]

  3. I listened to Chemerinsky speak at the last California Bar Association annual convention. He’s engaging and extremely, extremely sharp.

    He’s also a highly partisan liberal prone to making outrageous historical claims and to reasoning backwards from his preferred policy outcomes. This is a good example. Simplistic citation of the Heller dicta about concealed carry isn’t responsive to the Peruta panel majority opinion at all.

  4. As a lawyer, I am familiar with Dean Chemerinsky and well aware of his record. While he is a respected scholar on Constitutional law, he is also a dyed-in-the-wool liberal/progressive who toes the far-left line on pretty much any topic you can think of. His scholarship reflects his biases, and his view of the Second Amendment is completely unsurprising.

    1. I’ve always been puzzled at who “respects” Chemerinsky’s scholarship. I certainly don’t, and I’ve read plenty of it. Starting from when I took Con Law from his ex wife ;-)

      Chemerinsky has always been a partisan hack. And as Robert points out, his commentary on con law has always been extraordinarily dishonest.

      1. I actually find him pretty tolerable on most First Amendment issues, though like most liberals he has an enormous ideological blind spot as concerns political speech (that is, he will not accept the reality that a limit on how much you can spend to exercise a right is ipso facto a limit on the exercise of that right).

        But he’s just awful on the Second Amendment. He makes Carl Bogus look scholarly.

  5. Asking people of certain persuasions to actually read Heller is like asking Superman to snort Kryptonite….

  6. The most charitable interpretation of the article is that the man is incredibly ignorant and provincial in his outlook.

    Of course if he actually has any idea what carry laws are like in his state, or any other, well then it shows he’s a completely duplicitous hack.

  7. I can almost see why people who are completely ignorant of guns are ok with banning scary looking rifles and standard magazines. However rare, they have been used in heinous crimes.

    But since when have concealed carriers ever caused any problems? Very, very arguably one single dude in Florida? The only people who oppose carry are just completely and totally anti-gun across the board. And outside of highly liberal urban pockets, that’s a fringe position.

    I guess that’s why we’ve comprehensively won the battle for concealed carry. We’re down to mopping up the last pockets of resistance. And so many people have skin in the CCW game now that the antis won’t be rolling anything back. Carry rights are going in one direction, and its not the direction Chemerinsky wants. They’re wasting their time on this.

    Second Amendment means what it says and that it protects only a right to have firearms for purposes of “militia” service.
    What about the “hunters and sportsmen” you leftist assholes pay so much lip service to?

  8. To play devil’s advocate for a moment, the veracity of “California law generally prohibits individuals from carrying concealed weapons. Such laws are common throughout the United States” depends on how “arms” is defined. If it’s handguns, it is actually true in both CA and the rest of the country (except constitutional-carry states): there is a general prohibition of carrying concealed handguns in public, to which a CCW “grants” an exemption.

    (I am not a lawyer and this does not constitute legal advice.) There’s more leeway (and research needed) if the definition is expanded. Most folding knives are OK to carry concealed here (CA), as are TASERs, pepper spray, stun guns, and some other stuff. Lots of things like nunchucks, throwing stars, belt knives, disguised firearms, cane swords, etc. aren’t legal at all, so they’re included in prohibitions against carrying concealed weapons.

    And yes, all of these are infringements and I’m certainly not arguing for them.

    As to cherry-picking… I have no idea how anyone can produce or consume that kind of “analysis” with a straight face. If you’ve read the opinions, you know you’re misrepresenting them; if you haven’t, you have no business offering serious commentary on them (take my detailed review of this movie I haven’t seen seriously…). The second pull-quote is a straight-up lie. *headdesk*

    1. Nick — you are absolutely correct.

      By and large, unless your state is “Constitutional Carry”, it generally prohibits concealed carry, with exceptions for certain cases, which may include (examples drawn from my own state’s laws):

      1. Hunters protecting lawful hunting handguns from inclement weather while engaged in bona fide hunting.

      2. Law enforcement officers and certain other government officials.

      3. People who have been granted a permit to carry a concealed firearm.

      The CCW (by whatever name your state uses) is an exception to a general ban on carrying a concealed gun. Just as federally, your possession of an NFA registration form with ATF approval stamp on it is an exception to the general prohibition on possessing NFA “firearms”.

      1. It depends on how the statute is worded. Pennsylvania’s law is worded only prohibits carrying a concealed firearm without a license.

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