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Debate on Heller and its Implications:

Over at Cato Unbound, Bob Levy (Cato), Dennis Henigan (Brady Center), and I are debating the Heller case. All three of us have new essays on the subject. My essay published today looks at the fatal flaw in the Stevens dissent: its treatment of "the" in "the right to keep and bear arms." The essay also examines which types of gun bans and gun storage laws may now be unconstitutional. Erwin Chemerinsky will weigh in next week. Thereafter, we will engage in a four-way blog discussion.

Related Posts (on one page):

  1. The Meaning of "the"--
  2. Debate on Heller and its Implications:
Kazinski:
Interesting set of essays, Henigan makes a rather contradictory set of arguments, first he says that Scalia was wrong and dishonest, then he makes the argument that:

By erecting a constitutional barrier to a broad gun ban, the Heller ruling may have flattened the gun lobby's "slippery slope," making it harder for the NRA to use fear tactics to motivate gun owners to give their time, money and votes in opposing sensible gun laws and the candidates who support those laws.

Heh, let me paraphrase: 'By protecting a right to own guns, it invalidates the slippery slope argument, allowing us to start re-greasing the slope and take away your guns.'

Of course the one thing Henigan doesn't address, when going over the militia argument, again, is even why it is relevant. Whatever the purpose of the amendment, the remedy is clear: "the right to keep and bear arms shall not be infringed".

Imagine if you will the Sixth amendment has a prefix:

In order to protect the rights of the innocent, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Would the same lobby that is ready to disarm everyone not in the national guard claim that the right to a jury trial only pertains if you can first prove yourself innocent. That only those clearly innocent have sixth amendment protection? It would be an absurd position to take. Yet that is exactly what they are trying to say using the militia arguement to try and gut the second amendment.
7.18.2008 4:27pm
PersonalResponsibility:
Just thought of something vis-a-vis NEW handguns…when such time arrives that an FFL will do a transfer:

By DC law:

You need to submit the gun for ballistic testing to get a registration.

But to take delivery of a gun from an FFL, you need a completed/approved registration. (which you can't get without the ballistic test!)

The (il)logical conclusion is: There is no way to submit a new gun for ballistic testing, because you can't take possession of the gun without an approved registration, which requires ballistic testing.

It is legally IMPOSSIBLE to register a new gun in DC.

The new DC laws do NOT comply with Heller.
7.18.2008 5:04pm
J. Aldridge:
Speaking of essay's, anyone read P.A. Madison's essay? That essay is a jaw dropper and completely undresses Heller.
7.18.2008 9:53pm
Mike Hansberry (mail):
SSDD, Henigan repeats same tired arguments.


When it comes to the Second Amendment, however, Scalia interprets "keep and bear Arms" by ripping the phrase out of context; that is, by artificially separating the phrase from its stated purpose of ensuring a "well regulated Militia . . . necessary to the security of a free State."



But that is plainly not true, and is an example of the Henigan's own use of sleight-of-hand argument. The first 13 words of the Second Amendment provide a rationale of the non-infringement of the right, but the amendment does not assign a purpose to the right to "keep and bear arms", nor does it qualify the right in the way the right is qualified in the Massachusetts amendment. See http://www.volokh.com/posts/1202630795.shtml


The majority disguises its unprincipled use of context through the sleight-of-hand of referring to the militia language as "prefatory" as opposed to the other "operative" language of the Amendment. It treats the militia language as if it were equivalent to "whereas" clauses in legislative language, but this is clearly wrong. The preamble to the Constitution may be analogous to legislative "whereas" clauses, in that it is not independently enforceable as a source of substantive powers or rights. But the first thirteen words of the Second Amendment are only less "operative" than the remainder because five justices of the Supreme Court have now decreed it to be so.



The distinction between prefatory clause and operative clause is not simply a matter of choice by the reader, but is indicated by the actual text and grammar.

Mr. Henigan wishes that the amendment were written -the right of the people to keep and bear arms as part of a well regulated militia that is necessary to the security of a free state shall not be infringed -but the amendment was not written that way. The first 13 words are written as Absolute Construction and as such they do not act as a qualifier on the subject of the main clause. Henigan's preferred interpetation is not supported by the actual text of the amendment, and much less so if read in the context of a Bill of Rights.





The issue is not whether "keep Arms" and "bear Arms" could have non-militia meanings in other contexts. The issue is the meaning of the phrase "keep and bear Arms" in the context of a provision declaring the importance of a "well regulated Militia . . . to the security of a free State." The closest contemporary usage of "the right of the people to keep and bear arms" was in the Massachusetts Bill of Rights, which provided that "the people have a right to keep and bear arms for the common defense," in a provision that also warned of the dangers of peacetime armies and urged civilian control of the military. How do we know that "keep and bear arms" in that provision did not refer to individual self-defense? Because its context says otherwise. In a similar way, the meaning of the same phrase in the Second Amendment is affected by the context supplied by the militia language. Only through highly selective reliance on context to derive meaning does Scalia arrive at his predetermined conclusion.



We know the right of the Massachusetts provision was limited to "the common defense" , not because of context, but because of the plain text of the MA provision and basic grammar. Those words ("for the common defense") act as a qualifier on the right as it is written in the MA constitution. However those words are not found in the Second Amendment, nor is there any other qualifier on the right of the people to keep and bear arms as found in the Second Amendment.





Justice Scalia's tortured path thus "elevates above all other interests the right of responsible citizens to use arms in defense of hearth and home," in a text in which this interest is entirely hidden and in which the "security of a free State," not the security of "hearth and home" is the only expressed purpose of the guarantee. Grotesque. (To borrow a word from Justice Scalia).




Henigan's critique contains yet another error in that he completely divorces individual interests (i.e. self defense) from the "securitiy of a free state". Note James Madison used that same phrase "free state" in Memorial and Remonstrance"(1785).

From Madison's Memorial and Remonstrance(1785):
"We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. " (my emphasis in boldface)

Was Madison referring to Virginia as "a free state" in the sense that the commonwealth was one of the states of the Union? Or perhaps Virginia was a free and independent state in terms of international relations? Or was he characterizing Virginia as "a free state" meaning a non-tyrannical government in which citizens were able, and duty bound, to defend their rights against dangerous abuses of power by the government? The answer is found in the list of reasons that Madison gives for opposing the Bill for establishing a provision for teachers of the Christian Religion --the first of which concerns the protection of an individual's right to worship as his own conscience directs and includes Madison's observation that the will of the Majority sometimes tresspasses on the rights of the minority. Thus the "free state" concern is not for the freedom of action of the "state" or the "government", but for the freedom of the individual in relation to government.

Henigan's implication that the "security of a free state" does not include, or is something completely separate from the "security of hearth and home" is indeed grotesque. According to the founding generation, governments are instituted to secure personal rights. But according to Mr. Henigan, the right to keep and bear arms was instituted to secure the government in exclusion to the security of persons.
7.19.2008 12:40am
Crafty Hunter (www):
Anti-liberty zealots have made it crystal-clear that they will lie endlessly, amazingly. It comes down to a simple willingness, or not, by pro-liberty patriots to fight for their natural rights, which means exactly what you think it means.
7.19.2008 3:17pm