Very true, but we have to start somewhere--unless you have a crystal ball. I noted that this was dicta. Arguably, nothing is ever a settled question. The Constitution ultimately only means what 5 Justices on the Court say it means. Personally, I don't care what the NRA's position is. Yes there are civilian analogs of M-16's but, except in rare cases, civilians can buy only semi-automatics. Are semi-automatic "assault rifles," protected by the 2nd amendment? I think there are enough in circulation to make an argument that they are in common use. Do they play a large role in violent crime? No. Is there any good evidence that the temporary ban on them reduced gun violence? No. Most serious gang bangers have moved up to fully automatics like AK-47's. (I discussed the Mexican situation elsewhere) My personal opinion, however, is that they are not a good choice for home defense.
Part of the problem in this country, as you and others note, is that nobody trusts their ideological opponents. We have become polarized. We have winner-take-all and scorched earth politics. Each side demonizes the other (see DHS report on right-wing extremism). Too much kulturkampf and not enough rational policy making. Why don't we call a truce? The left will stop attacking gun and private property rights if the right will stop attacking gay marriage, abortion, etc. Unfortunately, hypocrisy is rampant with regard to rights. Each side has its favorites and attempts to punish, stigmatize and demonize its enemies. The ball is in Obama and Pelosi's court. Will they introduce new draconian gun control legislation (which IMHO is unnecessary) and enflame the right or try to build some trust and consensus in this country? If people would bother to examine the research literature, they would see that there is no solid consistent evidence that gun availability has a causal relationship with the homicide rate. There is no consistent solid evidence that any gun control measure has worked. If that's not what it is about, what is it about? It's primarily about emotion, status politics and kulturkampf. I wish I could continue this debate next week, but my job keeps getting in the way. Please carry on in my absence. Ray Kessler Prof. of Criminal Justice Sul Ross State Univ. From: John Bickers [mailto:[email protected]] Sent: Friday, April 17, 2009 4:28 PM To: Raymond Kessler; [email protected]; [email protected] Subject: RE: Types of weapons protected by 2nd Amend. "There seems to be some confusion among the public and some posters as to the types of weapons protected by the 2nd Amend." ___________________________________ But, respectfully, Prof. Kessler, that really isn't a settled question, is it? You are of course correct that Justice Scalia's opinion acknowledges limits, but it is not at all clear (to me, at least) that such language ever binds anyone. Recall that in his dissent in Grutter, Justice Scalia himself made this very observation: the Court's announcement of a principle does not really tell us where the limits to that principle are. As Prof. Volokh pointed out earlier in this thread, many of the advocates of gun rights do not trust their ideological opponents. The NRA is wary of even seemingly inoffensive government actions because they see in them merely the camel's nose under the tent. I might be so bold as to point out that the same unease is shared by opponents of gun rights; I have heard some fear that a right to handguns today might lead to a right to automatic weapons tomorrow. Indeed (although I am in the camp of neither adversary in this struggle), I think Justice Scalia's mention of an M-16 is at least puzzling. The civilian variants of that particlur weapon are, I believe, fairly common. Many on this list will know better than I whether the NRA takes the position, after Heller, that a reinstatement of the "assault weapons ban" is unconstitutional as opposed to merely a bad policy choice. Such weapons are actually quite effective for the right of confrontation spelled out in Heller, and are significantly easier to bear (for those of us not the Governor of California) than a handgun like a Desert Eagle. Heller is no more the end of the legal discussion regarding the Second Amendment than Brown was the end of the Equal Protection discussion. John Bickers Salmon P. Chase College of Law Northern Kentucky University
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