-------- Original Message -------- Subject: SELF CONTROL, THE UTILITARIAN CONSTITUTION, LEAVING THE GUN AND MORE Date: Mon, 20 Oct 2008 22:43:16 -0700 From: Dan Gifford <[EMAIL PROTECTED]> To: SECOND AMENDMENT GROUP <[EMAIL PROTECTED]>
"I don't like guns much, and the reason I don't like them is because I do like them. If you put one in my hand, I feel incredibly omnipotent. And I hate that truth." Colin Farrell Actor In a New York Daily News interview Newkerala.com October 18, 2008 http://www.newkerala.com/mn/a-922.htm No Self Control? Mirrors an immature brain Brain Waves Johns Hopkins School of Neurology Fall 2003 Volume 16, Number 2 http://www.neuro.jhmi.edu/brainwaves/2003_fall/adhd.htm ... it's time to start exercising your self-control muscle. Your self-control muscle? Indeed. For many psychologists who study self-control, that's becoming more than a metaphor. Self-control, they argue, behaves almost literally like the biceps in your arm ... When "exercised," it can get stronger ... The 'no' muscle How to bulk up your self-control By Christopher Shea Staff writer The Boston Globe December 16, 2007 http://www.boston.com/bostonglobe/ideas/articles/2007/12/16/the_no_muscle/ Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault ? from the right. Two prominent federal appeals court judges say that Justice Antonin Scalia?s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle ... The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures. Comparisons of the two decisions, then, seemed calculated to sting. Ruling on Guns Elicits Rebuke From the Right By ADAM LIPTAK Staff writer The New York Times October 21, 2008 http://www.nytimes.com/2008/10/21/washington/21guns.html?hp=&pagewanted Justice Breyer?s dissenting opinion shifted the debate from lexical intent to social cost. How, he asked, should the Court interpret the amendment considering that handguns are ?a very popular weapon among criminals? and ?are involved in a majority of firearms deaths and injuries in the United States?? The Supreme Court won?t excise an amendment from the Bill of rights based on negative sociological trends, but Breyer?s opinion represents the latest in a long tradition of utilitarian considerations within jurisprudence ... Historically, government has outlawed certain firearms based on their high social cost. The Cave: The social calculus of handguns By Stephen Parkin and Leor Maizel [EMAIL PROTECTED] Students Whitman College Whitman College Pioneer October 15, 2008 http://whitmanpioneer.com/opinion/2008/10/15/the-cave-the-social-calculus-of-handguns/ "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin Author, diplomat, inventor, physicist, politician, & printer (1706 - 1790) Historical Review of Pennsylvania, 1759 http://www.quotationspage.com/quote/1381.html It isn't every day that gun grabbers can invent a whole new catch phrase to use against our Constitutional rights under the Second Amendment, but the Orlando Sentinel is giving it the old college try just the same ... Using an incident in Orlando to drum up their newest gun grabbing meme, the Sentinel tells the tale of some criminals that perpetrated a double killing and then ran from the scene abandoning two AK-47s, two handguns and a shotgun behind them. The Sentinel warps a quote from an Orlando Detective into the new catch phrase. "They just disposed of them like disposable cigarette lighters, I guess, because they're so easy to get," sheriff's homicide Detective Dave Clark said Friday. "I mean, it's really unusual for people to leave stuff like this behind." Orlando Sentinel Invents New Anti-Gun Attack: 'Disposable AK-47s' By Warner Todd Huston Staff writer NewsBusters.com October 13, 2008 http://newsbusters.org/blogs/warner-todd-huston/2008/10/13/orlando-sentinel-invents-new-anti-gun-attack-disposable-ak-47s How come mafia hit men always drop the guns? They don't want to be caught with the weapon while fleeing the scene. If they've taken precautions to keep the gun from being traced back to them, it won't be much help to the police. In that case, it's better to leave it for the cops ... Only a criminal who is completely confident that his gun can't be traced would abandon the weapon. In this case, his chances of being connected with the weapon are so low that he's more worried about running into law enforcement during the getaway. Leave the Gun, Take the Cannoli: Why do mafia hit men drop their guns at the scene of a crime? By Michelle Tsai Reporter Slate.com June 4, 2007 http://www.slate.com/id/2167566/ Surrounded by the relatives of recently slain Philadelphia police officers, Gov. Rendell yesterday signed into law tougher gun penalties, including a mandatory 20-year sentence for anyone convicted of shooting - or shooting at - law enforcement officers. House Bill 1845 also increases penalties for other gun-related crimes and closes a loophole that allowed some mentally ill individuals to buy guns. But the General Assembly failed to support a provision that would have required the reporting of lost or stolen handguns. Rendell signs tighter gun law By Jennifer Lin Staff Writer Philadelpia Inquirer October 18, 2008 http://www.philly.com/inquirer/local/philadelphia/20081018_Rendell_signs_tighter_gun_law.html "Anytime we can get tighter gun laws, it is good for cutting violence in the city." Lynne M. Abraham Philadelphia District Attorney Rendell signs tighter gun law By Jennifer Lin Staff Writer Philadelpia Inquirer October 18, 2008 http://www.philly.com/inquirer/local/philadelphia/20081018_Rendell_signs_tighter_gun_law.html "I lost officers in D.C., but not to gun violence. It is very alarming to think that just within a year we've had four officers killed, three of whom were shot to death in outright assassinations." Charles H. Ramsey Philadelphia Police Commissioner and former Washington DC Police Chief Rendell signs tighter gun law By Jennifer Lin Staff Writer Philadelpia Inquirer October 18, 2008 http://www.philly.com/inquirer/local/philadelphia/20081018_Rendell_signs_tighter_gun_law.html "Barack has broad support from sportsmen and gun owners across the nation. He even received the endorsement of the American Hunters and Shooters Association - and not just because he'll defend your right to own a gun. He's also committed to protecting habitats, increasing access to land for hunting and fishing, and he has an economic plan to help struggling middle class families." Barack Obama ad Obama ad: http://my.barackobama.com/page/invite/nramember Obama sets sights on gun lobby By JONATHAN DART Reporter Sydney Morning Herald October 17, 2008 http://busselton.yourguide.com.au/news/national/national/sport/obama-sets-sights-on-gun-lobby/1336813.aspx "I hunt. I fish I love the outdoors. I love this country and I support Barack Obama." Greg West National Rifle Association (NRA) member In an Obama ad Obama sets sights on gun lobby By JONATHAN DART Reporter Sydney Morning Herald October 17, 2008 http://busselton.yourguide.com.au/news/national/national/sport/obama-sets-sights-on-gun-lobby/1336813.aspx "I have to tell you, with the high price of gas and just about everything else, we're all feeling pinched. Now I find out that Barack Obama supports a huge new tax on my guns and ammo and he voted to ban virtually all deer hunting ammunition. Where is this guy from? He's probably never been hunting a day in his life. No politician is going to take away my guns and ammo." Karl Rusch National Rifle Association (NRA) member In an NRA ad http://www.youtube.com/watch?v=xzr-nlTi7-8 Obama sets sights on gun lobby By JONATHAN DART Reporter Sydney Morning Herald October 17, 2008 http://busselton.yourguide.com.au/news/national/national/sport/obama-sets-sights-on-gun-lobby/1336813.aspx It's not just the United States that has a gun problem. China too is now fighting a tough battle against illegal guns and explosives. While Chinese citizens are prohibited from owning guns, gunfights and gun murders are increasingly being heard of. Guns are now fashionable in paintings and on television, and legal shooting clubs allow you to fire away at targets for a fee. Recent reports are now suggesting that some of the illegals guns originating from China are now making their way overseas to places like Mexico. Gun control in China Shanghaiist http://shanghaiist.com/2008/10/20/gun_control_in_china.php Ruling on Guns Elicits Rebuke From the Right By ADAM LIPTAK Staff writer The New York Times October 21, 2008 http://www.nytimes.com/2008/10/21/washington/21guns.html?hp=&pagewanted Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault ? from the right. Two prominent federal appeals court judges say that Justice Antonin Scalia?s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law. The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures. Comparisons of the two decisions, then, seemed calculated to sting. ?The Roe and Heller courts are guilty of the same sins,? one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review. Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller?s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions ?was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.? Sharp criticism of a recent Supreme Court decision by federal appeals court judges is quite unusual, though these two judges ? both Reagan appointees ? are more outspoken than most. Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court. Not all conservatives agree with the critics, of course. Robert A. Levy, a libertarian lawyer who was a principal architect of the victorious strategy in the Heller case, rejected the comparison to Roe. The two sides in the Heller case claimed to rely on the original meaning of the Second Amendment, based on analysis of its text in light of historical materials. The amendment says, ?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.? The more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law. In Judge Wilkinson?s view, the upshot of the court?s extensive historical analysis was that ?both sides fought into overtime to a draw.? Others said the quality of the combat was low. ?Neither of the two main opinions in Heller would pass muster as serious historical writing,? Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued. The strong reaction from the right after Heller was preceded, with a sort of symmetry, by liberal support for an individual-rights reading of the Second Amendment. For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view ?one of the greatest pieces of fraud ? I repeat the word ?fraud? ? on the American public by special interest groups that I have ever seen.?) But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson?s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called ?The Embarrassing Second Amendment.? In an interview, Professor Levinson said, ?The result in Heller is eminently respectable.? But he added that he understood why some conservatives were upset. ?People say the Roe court was too interventionist,? he said. ?So is the Heller court from that perspective.? Judge Wilkinson?s basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values. He assumed, as most experts do, that the decision would apply to the states. ?In both Roe and Heller,? Judge Wilkinson wrote, ?the court claimed to find in the Constitution the authority to overrule the wishes of the people?s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.? Judge Posner built on themes in his recent book ?How Judges Think,? which argued that constitutional adjudication by the Supreme Court is largely and necessarily political. The Heller decision, he wrote in The New Republic, ?is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.? Indeed, Judge Wilkinson wrote, ?Some observers may be tempted to view Heller as a revenge of sorts for Roe? or ?a sort of judicial tit-for-tat.? As Judge Posner put it, ?The idea behind the decision? in Heller ?may simply be that turnabout is fair play.? Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than the courts. ?But these are constitutional rights,? Mr. Levy, now chairman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. ?They are not rights consigned to the legislature.? The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution. The Second Amendment, by contrast, indisputably protects a right to keep and bear arms, though there is sharp disagreement about the scope of the right. Mr. Levy said the natural reading of the amendment, one supported by historical materials, was that it protected an individual right. In his article, Judge Wilkinson wrote that he ?readily agreed? that Roe ?involved the more brazen assertion of judicial authority.? But he added that the Roe and Heller cases shared a number of common flaws, including ?a failure to respect legislative judgments,? ?a rejection of the principles of federalism? and ?a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.? Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia?s opinion that seemed to endorse a variety of restrictions on gun ownership. ?Nothing in our opinion,? Justice Scalia wrote, ?should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.? Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. ?The Constitution?s text,? he wrote, ?has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.? Mr. Levy, too, said he was not a fan of the passage. ?I would have preferred that that not have been there,? he said. ?It created more confusion than light.? It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented ?the worst of missed opportunities ? the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.? At worst, he warned, ?There is now a real risk that the Second Amendment will damage conservative judicial philosophy? as much as Roe ?damaged its liberal counterpart.? ### -- ------------------------------------------------------------------- Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757 512/299-5001 www.constitution.org [EMAIL PROTECTED] ------------------------------------------------------------------- _______________________________________________ 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.
