With regard to: As far as limitations on a right, I agree with him that "Just as free speech has never been regarded as absolute, nor should an individual right to bear arms be seen as precluding all government regulation." But then he says, "government has a legitimate interest in discouraging gun violence, and prohibiting ownership of guns is a reasonable way to attain the goal."
Chemerinsky is an advocate of ideology -- it makes as much sense trying to debate his points as debating how many angels can dance on the head of a pin. With the issue of free speech never being regarded as absolute, isn't the issue really prior restraint of speech. That is, no government can gag you before you speak, but can punish you for lying to the FBI in an investigation or charge you with a crime if you should falsely cry "fire" in a theater, or jail you for revealing national secrets -- all these being acts to punish after the fact. In prohibiting ownership of guns, the government engages of prior restraint. The lawfulness of prior restraint contrary to the Constitution is the issue. As for prohibiting ownership of guns being a reasonable way to discourage gun violence, Chemerinsky rests his argument on the a view that reasonable is what legislators say it is. The moment you raise questions of effectiveness -- that is, should laws be required to be effective to be justified -- the reasonableness of gun control falls apart. And that isn't all -- when you raise the question of "strict scrutiny" in connection with any gun control, you have serious issues to settle before such laws appear reasonable. Chemerinsky, a law professor, doesn't talk about these issues because they don't fit his advocacy position. To Chemerinsky, truth doesn't matter -- winning matters. Phil > The same column appeared in my local paper today: > http://www.newsobserver.com/opinion/columns/story/794945.html > > I think he misdescribes the Miller decision, is misleading in implying > that there are no prohibitions regarding "assault rifles" (by the > accepted military usage these are NFA weapons) and ownership of guns by > criminals (as if there were no laws regarding ownership by felons.) > > He also is very sanguine about limitations on a right, "Guns are > simply a form of property. The government should have the same ability > to regulate firearms as other property." > > As far as limitations on a right, I agree with him that "Just as free > speech has never been regarded as absolute, nor should an individual > right to bear arms be seen as precluding all government regulation." But > then he says, "government has a legitimate interest in discouraging gun > violence, and prohibiting ownership of guns is a reasonable way to > attain the goal." > > The (lack of) logic floors me - if all regulations aren't precluded, > then a total ban is an ok regulation. (Or do I misunderstand him?) > > Would he accept the same conclusion for 1st Amendment rights? > > --henry schaffer > _______________________________________________ > To post, send message to [email protected] > To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof > > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. > > -- The Art of war is simple enough. Find out where your enemy is. Get at him as soon as you can. Strike at him as hard as you can and as often as you can, and keep moving on. -- Ulysses S. Grant _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
