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Miers on the Right to Keep and Bear Arms:

The New Republic's fine &c blog points to a 1992 article she wrote for the Texas Lawyer. In the article, she points to three infamous multiple homicides in Texas: the 1966 Texas Tower Shooting, in which a man climbed the clock tower at the University of Texas, and shot 14 people. (He was finally stopped when two policemen and a civilian rushed the building.) The second was the 1991 Killeen massacre, where a man entered a Luby's Cafeteria, and methodically slaughtered 23 unarmed people. (The incident played a major role in Texas rescinding its ban on carrying concealed handguns, and enacting a Shall Issue permit law.) The third incident in Miers' article had taken place recently; a man murdered two judges and two lawyers in a Fort Worth courthouse.

"How does a free society prevent" such crimes, she asked. She then explained:

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.
Miers, however, rejected the notion that "precious liberties", including "the right to bear arms," should be sacrificed in the name of crime prevention. Quite obviously, she was referring to the "right to bear arms" as an individual right.

It's technically possible that she was referring only to the Texas Constitutional arms right, which clearly is individual, rather than to the Second Amendment. However, the context of the quote does not seem so constricted, and even to describe the Texas right a precious liberty says a good deal about Ms. Miers' thinking.

She then explained the true solution to crime:
We will be successful in solving our massive crime problems only when we attack the root causes....

We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.

I agree, and have argued in the Barry Law Review that much-improved pre-school programs for at-risk boys would be far more effective, in the long run, at reducing violent crime than would gun control or even more draconian "conservative" federal criminal laws.

As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense. (I'll fill in the details on him in a subsquent post.) And even Brandeis had not specicially mentioned "the right to bear arms" as one of the "precious liberties" that "We are not willing to sacrifice."

Many web writers have raised legitimate questions about Miers. In terms of the right to arms, however, Americans who love their precious liberties need not hope about the unknown, but need only expect her to be consistent with what she has already said.



UPDATE: Just to clarify a few points: 1. It's possible that some nominee in-between Brandeis and Miers said something nice about the right to arms or self-defense, prior to his or her nomination. As elective candidates, Black, Warren, or O'Connor might be especially likely to have done so. It's just that, among the pro-RKBA community, there are no well-known quotes from them, as there are from Brandeis and Miers. 2. Everybody makes typos, but I agree that the quantity of errors in Miers' short article is troubling. 3. Clearly there were other potential nominees--including Pryor, Brown, and Jones--who have a more established record on the right to arms, and whose record on that issue is clearly part of a coherent judicial philosophy. 4. Given Miers' hero-worship of Bush, it is fair to wonder how often--if ever--she would rule against a position argued by Bush's Solicitor General. The current Bush policy is to defend all federal guns laws (including the D.C. handgun prohibition)--not by denying that the Second Amendment is an individual right, but by arguing that the civil plaintiffs do not have standing to challenge the law unless they are actually criminally prosecuted. That said, Miers is still very likely an improvement over O'Connor, who in United States v. Staples (1994)joined Justice O'Connor's concurrence regarding "the 'widespread lawful gun ownership' Congress and the States have allowed to persist in this country" and "the notable lack of comprehensive regulation." (emphasis added).

Ho-hum:
I'm not impressed by her muddled references to "freedom of liberties" (isn't that both redundant and devoid of specific content?) and "self-esteem."

The most successful people I know had low self-esteem as adolescents. There is also no evidence that in subcultures where crime rates are higher that self-esteem is lower. For example, black adolescents report higher self-esteem than white adolescents.
10.3.2005 7:26pm
Scott Scheule (mail) (www):
First good news I've heard all day.
10.3.2005 7:27pm
Jackjohn (mail):
The real problem with this article is that it is incompetently drafted: "The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts." What the hell does "prevent rights and privileges" mean? Prevent rights and privileges from doing what exactly? Does she mean impede the free exercise of rights and privileges? Prevent others from exercising their rights and privileges? This is the person Bush selected for the Supreme Court? She can't even write a freaking coherent sentence in Standard English. This is a debacle.
10.3.2005 7:30pm
Ddraig (mail):
The "Texas Lawyer" is a news paper publication and has had a moderate level of accuracy in typesetting, especially in 1992. I would read the sentence quoted by Jackjohn to read "those who pervert rights and privileges" and attribute the error to a simple typesetting problem.
10.3.2005 9:30pm
Concerned Citizen:
You give her too much credit. The more likely explanation is that she has never given much thought on whether the 2nd Amendment is a group or an individual right (and probably is not even aware of this debate among legal scholars). She probably used the term "precious liberties" as a colloquial term.
10.3.2005 9:31pm
Sam (mail) (www):
I've decided to make a list of alternate potential nominations since this one is worrisome to many.
10.3.2005 9:42pm
Edward A. Hoffman (mail):
What on earth does "freedom of liberties" mean? And which liberties is she talking about?

A different point: I want to address Concerned Citizen, whose comment above says:

You give her too much credit. The more likely explanation is that she has never given much thought on whether the 2nd Amendment is a group or an individual right (and probably is not even aware of this debate among legal scholars). She probably used the term "precious liberties" as a colloquial term.

It seems you presume Miers is a dolt and a shallow thinker. You may be proven right, but I doubt it. What is your evidence that her thinking is so limited?

I have no position on her yet, though as a liberal I am always uneasy about W's nominees to any position. I certainly presume she has an above-average intelligence and a high degree of legal acumen, and will until I see convincing evidence to the contrary.

My presumptions, even if they prove true, are far from enough to make me favor her appointment. If yours are proven true they will certainly lead me to oppose her. But I'd like to know why you make these presumptions in the first place.
10.3.2005 10:02pm
Ken Willis (mail):
Maybe she is pro-second amendment. I hope so. But "root causes" of crime is a liberal notion.
10.3.2005 10:43pm
Concerned Citizen:
Why do I think that Miers is a "dolt" or "shallow thinker" (and did not consider whether the 2nd Amendment is an individual or a group right)?

Look at her own words: "Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance."

What the heck is "freedom of liberties"? And what exactly is "freedom from constant surveillance"?
10.3.2005 11:32pm
big dirigible (mail) (www):
And that glib "family dysfunction" stuff - is she telling us that it "takes a village"?
10.3.2005 11:34pm
M. Simon (mail) (www):
I'm surprised she didn't mention ending Drug Prohibition as a method of reducing crime.

A DA candidate says:

Corbett elaborated on why he focused on drug use, saying, "[Illegal drugs] lead to about 60-70 percent of other crime."


I guess we have not learned the lessons of alcohol prohibition yet.
10.4.2005 12:19am
Vast RWC Underling:

What the heck is "freedom of liberties"? And what exactly is "freedom from constant surveillance"?



Don't you read the blogs!? Them's the new codewords for the "so-called right to privacy"! Harriet likes GIRLS!
10.4.2005 9:50am
Ikkonoishi (mail):

slaughtered unarmed 23 people.


I'm confused. Were the 23 people unarmed? Was the attacker unarmed? Were all the victims 23 years old?

Syntax Error on line 10. Compilation Halted.
10.4.2005 10:41am
Clayton E. Cramer (mail) (www):
I guess we have not learned the lessons of alcohol prohibition yet.
Or we haven't all learned the lesson from it that you draw.
10.4.2005 12:28pm
TL:
Yeah, neat drug reference pertaining to firearm ownership. What the ?? Maybe everybody gives Ms. Miers too much credit for her reference to social science, in that perhaps she was just trying to say something palatable, and really doesn't care much for why crimes happen. Maybe she only really cares that guns are available to drop criminals (or maybe deter them from dropping us).
10.4.2005 5:38pm
Kevin L. Connors (mail) (www):
I too find the composition of this article rather troubling. I mean, what if she employs the same sort of mish-mash terminology in writing her opinions?
10.4.2005 6:09pm