Another instance wherein those with an anti-firearm agenda, knowing, or at least expecting a ruling to that effect, that the 2nd amendment affirms an individual right, are doing everything they can to claim that the applicable standard of review/level of scrutiny as to whether an infringing law passes muster should be the lowest possible. Here is an attempt to reduce the 2nd amend right to only a property right, focusing solely on the means by which the right is protected and ignoring the fundamental importance of the right which is to be protected by that item of property.
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 27, 2007 3:00 PM To: [email protected] Subject: Firearmsregprof Digest, Vol 48, Issue 8 Send Firearmsregprof mailing list submissions to [email protected] To subscribe or unsubscribe via the World Wide Web, visit http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof or, via email, send a message with subject or body 'help' to [EMAIL PROTECTED] You can reach the person managing the list at [EMAIL PROTECTED] When replying, please edit your Subject line so it is more specific than "Re: Contents of Firearmsregprof digest..." Today's Topics: 1. Chemerinsky on Heller (Guy Smith) 2. Re: Chemerinsky on Heller (Henry E Schaffer) 3. Re: Chemerinsky on Heller (Philip F. Lee) 4. Re: Chemerinsky on Heller (Joe Rickershauser) 5. RE: Chemerinsky on Heller (Guy Smith) ---------------------------------------------------------------------- Message: 1 Date: Mon, 26 Nov 2007 18:33:08 -0800 From: "Guy Smith" <[EMAIL PROTECTED]> Subject: Chemerinsky on Heller To: "'Firearmsregprof'" <[email protected]> Message-ID: <[EMAIL PROTECTED]> Content-Type: text/plain; charset="us-ascii" http://www.nj.com/opinion/ledger/perspective/index.ssf?/base/news-1/11960553 48253430.xml <http://www.nj.com/opinion/ledger/perspective/index.ssf?/base/news-1/1196055 348253430.xml&coll=1> &coll=1 "Under this approach, it would not matter which view of the Second Amendment is adopted by the Supreme Court. Under either [individual/collective], the District of Columbia law would be upheld because the government has a legitimate interest in discouraging gun violence, and prohibiting ownership of guns is a reasonable way to attain the goal . the Supreme Court should simply say whatever the meaning of the Second Amendment, gun control laws are allowed so long as they are reasonable." Guy Smith Author, Gun Facts [EMAIL PROTECTED] www.GunFacts.info -------------- next part -------------- An HTML attachment was scrubbed... URL: http://lists.ucla.edu/cgi-bin/mailman/private/firearmsregprof/attachments/20 071126/18e20536/attachment-0001.htm ------------------------------ Message: 2 Date: Tue, 27 Nov 2007 07:52:07 -0500 From: Henry E Schaffer <[EMAIL PROTECTED]> Subject: Re: Chemerinsky on Heller To: [email protected] Message-ID: <[EMAIL PROTECTED]> Content-Type: text/plain; charset=us-ascii 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 ------------------------------ Message: 3 Date: Tue, 27 Nov 2007 08:47:40 -0500 (EST) From: "Philip F. Lee" <[EMAIL PROTECTED]> Subject: Re: Chemerinsky on Heller To: Henry E Schaffer <[EMAIL PROTECTED]>, [email protected] Message-ID: <[EMAIL PROTECTED]> Content-Type: text/plain; charset=iso-8859-1 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 ------------------------------ Message: 4 Date: Tue, 27 Nov 2007 09:56:48 -0500 From: Joe Rickershauser <[EMAIL PROTECTED]> Subject: Re: Chemerinsky on Heller To: [email protected] Message-ID: <[EMAIL PROTECTED]> Content-Type: text/plain; charset=windows-1252; format=flowed What 1937 property law/decision is Chermerinsky referring to? Somehow, I doubt that it was used to overturn a right of the people enumerated in the Bill of Rights. But what do I know? I'm not going to be Dean of my own law school. I do know that I'd not recommend his new law school -- and that Duke's Law School ranking ought to improve with it's upcoming vacancy. --jcr > http://www.nj.com/opinion/ledger/perspective/index.ssf?/base/news-1/11960553 48253430.xml&coll=1 > <http://www.nj.com/opinion/ledger/perspective/index.ssf?/base/news-1/1196055 348253430.xml&coll=1> > > ?Under this approach, it would not matter which view of the Second > Amendment is adopted by the Supreme Court. Under either > [individual/collective], the District of Columbia law would be upheld > because the government has a legitimate interest in discouraging gun > violence, and prohibiting ownership of guns is a reasonable way to > attain the goal ? the Supreme Court should simply say whatever the > meaning of the Second Amendment, gun control laws are allowed so long as > they are reasonable.? ------------------------------ Message: 5 Date: Tue, 27 Nov 2007 09:23:53 -0800 From: "Guy Smith" <[EMAIL PROTECTED]> Subject: RE: Chemerinsky on Heller To: <[email protected]> Message-ID: <[EMAIL PROTECTED]> Content-Type: text/plain; charset="us-ascii" Philip wrote: > 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." This notion has always concerned me, and may get a fair test under Heller. In all instances I have bothered to dig into, speech "rights" have not been abridged wholesale. Endangering or malicious use of speech (where it has the effect of reducing another person's rights) is though there is no blanket preemption of speech rights, but individual and case-specific restraint of bad behavior. Parallels between endangering use of firearms seem appropriate. Heller is a gun ownership case, and any regulation that impairs the ability to "keep arms" in absence of initial bad behavior would be a denial of a right without due process and not a correction for endangering behavior. > 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. http://gunfacts.info/notes/fire.html The above is my ongoing pushback on the "yelling fire" argument (you can yell fire in a crowded theater in many circumstances), and tied to RKBA. It fits your analysis as well. > 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. Yet what is the definition of "reasonable?" The current president of Iran might well argue that Hitler's "final solution" was reasonable given the "stated problem." Hardy (and others) have pondered the court's restatement of the questions, and certain exclusion of words in those revised questions have led others to believe the court may skirt the "reasonable regulation" issue entirely. I'm not that hopeful. Guy Smith Author, Gun Facts [EMAIL PROTECTED] www.GunFacts.info ------------------------------ _______________________________________________ Firearmsregprof mailing list [email protected] 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. End of Firearmsregprof Digest, Vol 48, Issue 8 ********************************************** _______________________________________________ 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.
