Liptak is back with a piece about the pending Supreme Court case of District of Columbia v. Heller, where the court is poised to decide, maybe once and for all, what the second amendment means.
As passed by the House and Senate:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As circulated and ratified by the States:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
Note that there are difference in punctuation and capitalization. Whether this was intentional, or just a quirk of the time, remains something of a mystery. Regardless, at some point we need to move beyond a few hundred years of squabbling and decide what right our founding fathers gave us.
To illuminate the issue, Liptak turned to none other than our dear friend, libertarian icon and learned colleague, Eugene Volokh, for succor:
Many state constitutions have clauses that say why various rights are guaranteed. In an article surveying them in the New York University Law Review in 1998, Eugene Volokh concluded that the fit between purpose and command is often loose, “casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause.”
While he soft-pedaled the sell, his point is clear. The precatory phrase doesn’t limit the right. Ah, if only he was as sanguine about the Fourth. Of course, this has become the prevailing view of the second amendment by scholars, liberal and conservative alike.
Consider what the implications are for a second amendment that provides a right to “keep and bear arms.” There would be no crime of simple weapons possession. Bulges under the arm of men in suits would be commonplace, and the new status-symbol might be a pearl handled revolver. Louis Vuitton would make holsters. Rappers would carry diamond and platinum weapons, while street hustlers would have to chose between gun metal and chrome, deciding whether it’s better to show it or hide it.
There are a lot of angry people around these days, and they might be inclined to use a gun when someone annoys them, even if it’s just because they won’t give them a bag to protect their newspaper. (read this link to the NY Times Magazine; it’s hysterical.) Road rage offers so many weapons opportunities that I wouldn’t know where to begin.
And consider that the Second Amendment, though always discussed in terms of guns, doesn’t limit itself to guns at all. It speaks to “arms”. Will swords become part of the well-dressed executives uniform? You have to admit, there is something about a beautifully-made sword that is quite alluring. Or perhaps kids will take up sling-shots, hanging from their back-pockets like Huck Finn. Certainly school rules prohibiting weapons, part of that zero-tolerance policy that keeps embarrassing school officials and creates confusion amongst students who learn about citizenship but are so often denied the ability to exercise it, will need to be revisited.
There aren’t a lot of gun shops around my neighborhood. The few that exist are frankly pretty drab and unattractive. I guess they really didn’t need to gussy themselves up to attract the walk-in crowd for that spur-of-the-moment Glock purchase. But the court’s decision in Heller could change everything. Do you hear that sound? It’s opportunity knocking. Or maybe just a snubby firing a few rounds at the guy who made an annoying right on red.
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What If The Second Amendment Does Apply to Everyon…
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Cnsider what might happen if, instead of spending a lot of time and effort restricting who could and couldn’t carry firearms, and worrying about annoying drivers getting shot, a state were to make it simple: if you’re over 21, well, knock yourself out. Carry a handgun (or a dozen, if you’d like), openly or discreetly. If you don’t want to, don’t. Don’t apply for a permit — you can’t get one and don’t need one. Just do what makes sense to you — but don’t do anything, well, bad with it or they’ll put you in jail.
Now, rent a car and drive to Vermont; that’s exactly the deal there. If you own a handgun, bring it along, if you’d like; if you don’t, don’t.
Unfortunately or not — I think it’s the former — there’s no real question that even the most forthright straightforward decision in Heller won’t throw out all the myriad restrictions in your state or in mine. But would it really be so bad? If so, why?
As to carrying other weapons, in Minnesota, my carry permit only allows me to carry firearms throughout the state; cities can (and sometimes do) regulate the carrying of other weapons. As it turns out, in my own city, if I wanted to carry a sword, I could do so lawfully. I don’t see the harm in that, although I don’t actually carry my sword; takes several years of hard work to turn somebody into a decent fencer, and I’ve not put in those years.
But, if I did, what would be the harm?
Forget all that, Joel. If Heller goes the way I expect, can I count on your help to open my new gun shop, WeaponWorld. I see franchising, merchandising, fashion accessories, and the recurring ammo sales alone should be enough to keep me in champagne. Are you with me?
Hell, yes, except for the franchising; I know enough about the business to know why that wouldn’t work. But if Heller knocks out NYC’s authoritarian gun laws, the repressed demand will generate a whole lot of business for accessories, and those who get in on the ground floor will make a, err, killing.
So to speak.
Not a lot of profit in guns or ammo, alas; competition, even now, is very stiff and the margin on, say, a $500 gun is likely to be about $25. (In fact, I bought a Model 60 at $5 over dealer cost this week.)
But, should it go that way, get a good custom holstermaker, a tailor who knows how to handle asymmetric bulges (lawyers won’t want to look untidy), a good beltmaker (belt’s even more important than the holster), and be sure to grab some floor space near a range, and you can do lawyering as a hobby, and take on all those freebie cases that you’ve been wanting to without missing for next year’s new Lexus.
Might even be able to do something with the guns, come to think of it, as long as you go for the high end — think Lew Horton squared.
I’m in, but I think the chances of Heller making that possible are slightly less than the chances of Steve Speilberg calling me up to buy screen rights for my novel series.
I’m more interested in the other end of the “arms” spectrum — I’ve seen Apache attack helicopters over the city a few times recently, and I’d like to have one of my own, but only if I can keep the 30mm chain gun loaded.
Not only will you be entitled to have one of your very own, but I can give you a great deal on one here at WeaponWorld! And forget that puny 30mm pea shooter. We’ve got some goldplated 90mm guns that will look fabulous with you at the trigger. Call us at 1-800-WEAPONWORLD!
DOJ: Disingenuous on Justice
Courtesy of Doug Berman at Sentencing Law and Policy, and via Grits, comes this little bit of nonsense from our very own government in its amicus brief, trying to have it both ways in Heller.
Really?
DOJ: Disingenuous on Justice
Courtesy of Doug Berman at Sentencing Law and Policy, and via Grits, comes this little bit of nonsense from our very own government in its amicus brief, trying to have it both ways in Heller.
Really?
DOJ: Disingenuous on Justice
Courtesy of Doug Berman at Sentencing Law and Policy, and via Grits, comes this little bit of nonsense from our very own government in its amicus brief, trying to have it both ways in Heller.
Really?
I’ve long been jealous of how much lawyers make, but, sheesh; I wish I had sixteen million to drop on a toy.
I’m going to call it a business expense, so I’m using pre-tax dollars.
Well, that explains it. Assuming you bill at $10K/hour, that’s only about twenty weeks’ work, assuming eighty billable hours per week.
NRA Says No 2d Amendment RKBA For You!
The upcoming Supreme Court case of District of Columbia v. Heller has brought out a ton of amici, as one would suspect, ranging from
NRA Says No 2d Amendment RKBA For You!
The upcoming Supreme Court case of District of Columbia v. Heller has brought out a ton of amici, as one would suspect, ranging from
NRA Says No 2d Amendment RKBA For You!
The upcoming Supreme Court case of District of Columbia v. Heller has brought out a ton of amici, as one would suspect, ranging from