Individual right or collective
Erwin Chemerinsky's essay brings some valid points to the table for debate. I'm not so vain as to think there are no opinions other than mine that hold a logical position.
My problem with Chemerisky is that from his ivory tower he has lost touch with the soul of the American people. A simple Saturday Night Special in a pocket or a nightstand is what separates a citizen from a peasant. It's in the soul of Americans to be free! The cowboy mythology still rings true with the common man.
I simply ask Chemerisky and his neo-liberal brethren to error on the side of the "individual" as opposed to a knee-jerk grasp for the safety of the "collective rights" crowd. As an inanimate object, a gun has never killed a person in the long history of firearms. I assure you, it is the person who pulls the trigger that needs to be controlled.
How can we trust the government if they don't trust us with guns?
Dean
"Philip F. Lee" <pflee@wdn.com> wrote:
A law lecture on the Washington Post editorial page to inform us all.
Phil
A Well-Regulated Right to Bear Arms
By Erwin Chemerinsky
Wednesday, March 14, 2007; Page A15
In striking down the District of Columbia's handgun ban last week, a
federal appeals court raised the crucial constitutional question: What
should be the degree of judicial deference to government regulation of
firearms? The decision by the U.S. Court of Appeals for the D.C.
Circuit interpreted the Second Amendment as bestowing on individuals a
right to have guns. But even if this reasoning is accepted, and it is
very much disputed, the Court of Appeals still should have upheld the
law as being a reasonable way of achieving the government's legitimate
goal of decreasing gun violence.
There is a major debate among scholars and judges involving two
competing views of the Second Amendment. One approach, adopted by the
Supreme Court in 1939 and by most federal courts of appeals, sees the
Second Amendment as preventing Congress from regulating firearms in a
manner that would keep states from adequately protecting themselves.
This "collective rights" approach rejects the idea that the Second
Amendment bestows on individuals a right to have guns. The alternative
view, adopted by the D.C. Circuit on Friday, sees the Second Amendment
as creating a right for individuals to have firearms.
Each approach is consistent with the text of the Second Amendment, and
each is supported by strong historical arguments about the original
meaning of the provision. The Second 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." Those who
take the collective rights approach focus on the initial language of
the provision, while those who take the individual rights approach
focus on the latter language.
Each side of the debate marshals impressive historical arguments about
what "militia" and "keep and bear arms" meant in the late 18th
century. In the past few years, two other federal courts of appeals
exhaustively reviewed this history, and one determined that the
Framers intended the individual rights approach, while the other read
history as supporting the collective rights approach.
The assumption in this debate, and one that the D.C. Circuit followed
Friday, is that gun control laws are unconstitutional if the
individual rights approach is followed. This assumption, though, has
no basis in constitutional law. No rights are absolute. Even the First
Amendment, which is written in the seemingly absolute language that
Congress shall make "no law" abridging freedom of speech or religion,
allows government regulation.
Therefore, under the individual rights approach, there still is the
question of what types of government regulations are appropriate.
For 70 years the Supreme Court has distinguished among constitutional
claims in deciding how closely to scrutinize laws and how much to
defer to legislatures. In instances where there is reason to distrust
the government, such as for laws discriminating on the basis of
race, "strict scrutiny" is used and the government can prevail only if
its action is necessary to achieve a compelling purpose.
But where there is little reason to doubt the legislatures' choices,
courts give great deference to the legislatures and uphold laws so
long as they are reasonably related to a legitimate government
purpose. For example, discrimination that is based on characteristics
such as age, disability and sexual orientation need to meet only this
more relaxed standard. Even rights enumerated in the Constitution,
such as property rights, generally receive only this relaxed level of
judicial review. For this reason, for 70 years, government regulation
of the economy to protect employees and consumers has been upheld in
the face of claims that it unduly restricts property rights.
In other words, even if the D.C. Circuit is right in holding that the
Second Amendment creates individual rights, that does not answer the
question as to the level of scrutiny to be used in evaluating gun
control laws. I believe that there is a strong argument that the
regulation of guns should be treated the same as other regulation of
property under modern constitutional law: The regulation should be
allowed so long as it is rationally related to achieving a legitimate
government purpose.
Under this standard, there is no doubt that the D.C. gun law is
constitutional. The city's government was pursuing the legitimate goal
of decreasing gun violence, and its means were certainly reasonable.
The Supreme Court will probably review the D.C. Circuit decision.
Whether the court takes the individual or the collective rights
approach, it should uphold the D.C. law and make clear that courts
will defer to legislatures in their regulation of firearms.
The writer is a professor of law and political science at Duke
University.
My problem with Chemerisky is that from his ivory tower he has lost touch with the soul of the American people. A simple Saturday Night Special in a pocket or a nightstand is what separates a citizen from a peasant. It's in the soul of Americans to be free! The cowboy mythology still rings true with the common man.
I simply ask Chemerisky and his neo-liberal brethren to error on the side of the "individual" as opposed to a knee-jerk grasp for the safety of the "collective rights" crowd. As an inanimate object, a gun has never killed a person in the long history of firearms. I assure you, it is the person who pulls the trigger that needs to be controlled.
How can we trust the government if they don't trust us with guns?
Dean
"Philip F. Lee" <pflee@wdn.com> wrote:
A law lecture on the Washington Post editorial page to inform us all.
Phil
A Well-Regulated Right to Bear Arms
By Erwin Chemerinsky
Wednesday, March 14, 2007; Page A15
In striking down the District of Columbia's handgun ban last week, a
federal appeals court raised the crucial constitutional question: What
should be the degree of judicial deference to government regulation of
firearms? The decision by the U.S. Court of Appeals for the D.C.
Circuit interpreted the Second Amendment as bestowing on individuals a
right to have guns. But even if this reasoning is accepted, and it is
very much disputed, the Court of Appeals still should have upheld the
law as being a reasonable way of achieving the government's legitimate
goal of decreasing gun violence.
There is a major debate among scholars and judges involving two
competing views of the Second Amendment. One approach, adopted by the
Supreme Court in 1939 and by most federal courts of appeals, sees the
Second Amendment as preventing Congress from regulating firearms in a
manner that would keep states from adequately protecting themselves.
This "collective rights" approach rejects the idea that the Second
Amendment bestows on individuals a right to have guns. The alternative
view, adopted by the D.C. Circuit on Friday, sees the Second Amendment
as creating a right for individuals to have firearms.
Each approach is consistent with the text of the Second Amendment, and
each is supported by strong historical arguments about the original
meaning of the provision. The Second 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." Those who
take the collective rights approach focus on the initial language of
the provision, while those who take the individual rights approach
focus on the latter language.
Each side of the debate marshals impressive historical arguments about
what "militia" and "keep and bear arms" meant in the late 18th
century. In the past few years, two other federal courts of appeals
exhaustively reviewed this history, and one determined that the
Framers intended the individual rights approach, while the other read
history as supporting the collective rights approach.
The assumption in this debate, and one that the D.C. Circuit followed
Friday, is that gun control laws are unconstitutional if the
individual rights approach is followed. This assumption, though, has
no basis in constitutional law. No rights are absolute. Even the First
Amendment, which is written in the seemingly absolute language that
Congress shall make "no law" abridging freedom of speech or religion,
allows government regulation.
Therefore, under the individual rights approach, there still is the
question of what types of government regulations are appropriate.
For 70 years the Supreme Court has distinguished among constitutional
claims in deciding how closely to scrutinize laws and how much to
defer to legislatures. In instances where there is reason to distrust
the government, such as for laws discriminating on the basis of
race, "strict scrutiny" is used and the government can prevail only if
its action is necessary to achieve a compelling purpose.
But where there is little reason to doubt the legislatures' choices,
courts give great deference to the legislatures and uphold laws so
long as they are reasonably related to a legitimate government
purpose. For example, discrimination that is based on characteristics
such as age, disability and sexual orientation need to meet only this
more relaxed standard. Even rights enumerated in the Constitution,
such as property rights, generally receive only this relaxed level of
judicial review. For this reason, for 70 years, government regulation
of the economy to protect employees and consumers has been upheld in
the face of claims that it unduly restricts property rights.
In other words, even if the D.C. Circuit is right in holding that the
Second Amendment creates individual rights, that does not answer the
question as to the level of scrutiny to be used in evaluating gun
control laws. I believe that there is a strong argument that the
regulation of guns should be treated the same as other regulation of
property under modern constitutional law: The regulation should be
allowed so long as it is rationally related to achieving a legitimate
government purpose.
Under this standard, there is no doubt that the D.C. gun law is
constitutional. The city's government was pursuing the legitimate goal
of decreasing gun violence, and its means were certainly reasonable.
The Supreme Court will probably review the D.C. Circuit decision.
Whether the court takes the individual or the collective rights
approach, it should uphold the D.C. law and make clear that courts
will defer to legislatures in their regulation of firearms.
The writer is a professor of law and political science at Duke
University.
0
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quote:I believe that there is a strong argument that the
regulation of guns should be treated the same as other regulation of
property under modern constitutional law: The regulation should be
allowed so long as it is rationally related to achieving a legitimate
government purpose.
So very kind of the little weasel, to take an entire amendment to the Constitution and dismiss it as subject to the singular whims of the Administration of the Moment.
Let's say the Government decided that voicing dissent against the Powers That Be was henceforth illegal, and passed a law banning possession of any material (print, audio, video, or electronic) containing criticism of the government.
According to this little turd, that would be okay, since the No More Free Speech Law would: 1)relate to personal property rights (the individual's right to own seditious papers, books, bytes of text, etc) and be "rationally related to achieving a legitimate government purpose", ie- keeping people from making trouble.
It's so nice to know we have professors drilling this sort of short-sighted garbage into the heads of our youths.0 -
ALL the other amendments are defining the rights of the "individual."
Why would the second be different than the rest?0 -
quote:Originally posted by pickenup
ALL the other amendments are defining the rights of the "individual."
Why would the second be different than the rest?
there is some well respected opinion that the second confers both a collective and an individual right to arms, not just one or the other.0 -
quote:I believe that there is a strong argument that the
regulation of guns should be treated the same as other regulation of
property under modern constitutional law: The regulation should be
allowed so long as it is rationally related to achieving a legitimate
government purpose.
Under this standard, there is no doubt that the D.C. gun law is
constitutional. The city's government was pursuing the legitimate goal of decreasing gun violence, and its means were certainly reasonable.Okay, let us take a good long look at his logic. He assumes a certain level of legitimacy not because the results were beneficial to the people, but rather, that the goals of the government were "reasonable."
If this is his brand of legal philosophy, one could justify rape because your goal was to bring a new baby into the world. The criminal act, in this so-called expert's view, is trumped by one's intentions.
An individual's rights ARE collective rights. Never once has a law been passed that affected but one individual or group of individuals and not had an adverse affect on society at large. Therefore, the argument that it is an issue of individual or collective rights is invalid. It is an argument used by those who advocate oppressive measures because they are convinced they will not be affected by the resulting laws passed.0 -
quote: sees the Second Amendment as creating a right for individuals to have firearms.
quote: that the Second Amendment creates individual rights
I didn't know that the Second Amendment "created" anything, or that the Constitution, specifically the Bill of Rights, did the same. If I read everthing correctly, by my interpretation, the BoR simply states the inherent rights that all citizens of this country have. The framers of this incredible document felt the need to put these rights on paper, recorded for all generations to follow, so that there would never be any question as to what they are. They wrote it down, in as simple of terms as possible so as not to be ambiguous or open for interpretation - so that no one could change those rights to suit their personal ideaologies, to pick and choose those they want to grant at their discretion.
I see this as being both "collective" and "individualistic" in that the entirity of the Bill of Rights spells out the rights collectively for all individual citizens.
quote:The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.
As to this statement, this gentleman would seem to support any regulation if the government has a good use for it. Well, gun control laws suit their purpose of absolute rule by not allowing its citizens the means to keep them in check. They did learn from history in that if its citizens disagree with its government, the citizens will rise against it aka the Revolutionary and Civil Wars. To avoid this, they plan on outlawing guns. Once that is done, the right of free speech will be next on the agenda followed by the right to vote. At that point a new "king", I predict, would be apointed from their ranks...then we will have come full circle meeting the new "King George" at his coronation.
Our Constitution is in peril gentlemen.
I don't advocate another uprising like generations passed, but I do say we, the people, need to stand up and say to those who claim to represent us that they are are no longer welcome as our leaders. Our leaders no longer act in the best interests of us all and become so intoxicated by the power they wield (spelling?) they do not fear us as they should. We need to vote them all out and start anew. Fresh blood, new ideas, leaders that are not affiliated with a specific political party, but has experienced both sides of the arguments set before them, who lead with both head and heart and not their pocketbook.
Hammurabi set the laws of his land in stone, our Constitution deserves no less.0 -
I predict the Supremes will refuse to hear the appeal and the ruling will stand. 0 -
Just another domestic enemy, blathering on, trying to reinforce the mistaken belief of many that Amendment II means something other than what it OBVIOUSLY does. 0 -
We stand in a nation that is falling precisely because we are too 'tolerant'...tolerant of views that take power away from the people and hands it to government.
There will be no rectifing this grave error till government totally oversteps its bounderies..and 'we the people' either get off our dead asses..or roll completely over for the pleasure of the Elites.
Either way...most people living today I believe WILL get the chance to act like Americans are SUPPOSED to act...or submit to being buggered like a prison inmate.0 -
that is a worthless commie article. The founders were on the side of idividuals.
But also it is in the collective good to protect the 2cd0 -
quote:Originally posted by aramisvi
quote: sees the Second Amendment as creating a right for individuals to have firearms.
quote: that the Second Amendment creates individual rights
I didn't know that the Second Amendment "created" anything, or that the Constitution, specifically the Bill of Rights, did the same. If I read everthing correctly, by my interpretation, the BoR simply states the inherent rights that all citizens of this country have.
Absolutely correct
quote:The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.
Our Constitution is in peril gentlemen. Again absolutely correct
I don't advocate another uprising like generations passed, but I do say we, the people, need to stand up and say to those who claim to represent us that they are are no longer welcome as our leaders. Our leaders no longer act in the best interests of us all and become so intoxicated by the power they wield (spelling?) they do not fear us as they should. We need to vote them all out and start anew. Fresh blood, new ideas, leaders that are not affiliated with a specific political party, but has experienced both sides of the arguments set before them, who lead with both head and heart and not their pocketbook.
I completely and totally disagree. There is no fear of not getting re-elected after you've achieved the goal of a pension in the Congress. That leaves but one choice with one acceptable outcome.0 -
quote:Originally posted by 180A
I predict the Supremes will refuse to hear the appeal and the ruling will stand.
You may be right. The anti's may not want to take the chance of that case going up to the supreme court. It would make most gun laws in our big cities unconstitutional overnight.0 -
My KS state constitution clearly, emphatically and without any room for disagreement or debate gives the average citizen gun ownership rights. And with just a little debate, it also gives concealed carry rights. Yet any national debates about gun rights treats the KS constitution as a piece of used toilet paper. It is not worth a damn nor is it even mentioned.
In regards to the US 2A, does any honest person REALLY believe it was written in order to allow for governments to be armed? If it really does only authorize "militias" then why, in the last sentence, the most important sentence, does it drop the use of the "militia" and instead and only refer to "the people" being armed.
For any person to deny that the 2A gives the citizens gun rights is to be the kind of person who would launch a big legal debate about what the meaning of "is" is.0 -
quote:Originally posted by tr fox
My KS state constitution clearly, emphatically and without any room for disagreement or debate gives the average citizen gun ownership rights. And with just a little debate, it also gives concealed carry rights. Yet any national debates about gun rights treats the KS constitution as a piece of used toilet paper. It is not worth a damn nor is it even mentioned.
In regards to the US 2A, does any honest person REALLY believe it was written in order to allow for governments to be armed? If it really does only authorize "militias" then why, in the last sentence, the most important sentence, does it drop the use of the "militia" and instead and only refer to "the people" being armed.
For any person to deny that the 2A gives the citizens gun rights is to be the kind of person who would launch a big legal debate about what the meaning of "is" is.
not only that, but elsewhere in the constitution Congress is given the power to raise armies and navies. Why would they then need seperate authorization to arm militias? seems kind of redundant, doesn't it?0
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