Northwestern U.L.Sch. 2009 Firearms Law & The Second Amendment Symposium:

[tombogan03884]

Posted by David Kopel:
Northwestern U.L.Sch. 2009 Firearms Law & The Second Amendment Symposium:
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252440091


   [1]To be held this Saturday, 9 a.m. to 3 p.m. Cosponsored by the
   Northwestern University Law School chapter of the Federalist Society
   and the NRA Foundation.
   Panel 1 is 9-10:30, on "Second Amendment Law and the Practicioner."
   Speakers are Christopher Conte, Richard Gardiner, Ken Hanson, and
   Willam Howard.
   Panel 2 is 10:45-12:15, "The Second Amendment and Constitutional
   Interpretation." Speakers are Nelson Lund, Allen Rostron, and me. I
   will be speaking about the Second Amendment in the Living
   Constitution.
   The final panel is "The Scope of the Second Amendment," with Nicholas
   Johnson, Michael O'Shea, and Clayton Cramer, 1:30-3.
   Some recent interesting scholarship by the panelists includes:
   Rostron: [2]Incrementalism, Comprehensive Rationality, and the Future
   of Gun Control, Maryland Law Review, Vol. 67, No. 3, 2008--an
   explanation of how federal gun laws have been created incrementally,
   with the resulting product not being particularly coherent or
   rational. [3]Cease Fire: A 'Win-Win' Strategy on Gun Policy for the
   Obama Administration, Harvard Law & Policy Review, Vol. 3, No. 2,
   2009. Obama should say that he will support new legislation which
   advances gun control AND gun rights. Roston provides a menu of gun
   control choices which he argues will have little if any effect on
   law-abiding gun owners, plus a list of gun rights proposals which have
   been offered in Congress recently. A bill which contains items from
   both Column A and Column B would best reflect American public
   attitudes, he argues.
   O'Shea: [4]The Right to Defensive Arms After District of Columbia v.
   Heller, 111 West Virginia Law Review 349 (2009). Outstanding
   explanation of the civic vs. personal firearms right strands in Miller
   and Heller, and the implications of Heller's decision to give priority
   to personal use.
   Lund: [5]Heller and Nonlethal Weapons, Hastings Law Journal,
   Forthcoming. Heller's "common use" could test for permitted arms could
   allow a government to stifle innovative firearms. (The O'Shea article
   also addresses this issue.) The Court should abandon the "common use"
   dicta, and instead apply the principle of Kyllo v. United States that
   the Constitution keeps up with technological development. This is
   particularly important in light of new non-lethal defensive arms which
   may become available.
   Cramer: [6]Gun Control: Political Fears Trump Crime Control, Maine Law
   Review, 61:1[2009] 57-81. Great Britain's Firearms Act of 1920 was
   mainly enacted in response to fears of political unrest, involving
   suffragettes, trade unionists, Irish, and (especially post-WWI)
   Commununists and the lower classes in general.
   Johnson: [7]Imagining Gun Control in America: Understanding the
   Remainder Problem, Wake Forest Law Review, Vol. 43, 2008. Even without
   the impediment of Heller, many supply-side gun controls could be
   nearly impossible to implement effectively. Proposals regarding
   registration, special restrictions on gun shows, gun rationing (e.g.,
   "one gun a month"), ballistic fingerprinting, and smart guns are
   examined in light of the remainder problem.

References

   1. http://www.nraila.org/ActionCenter/GrassRootsActivism.aspx?ID=90
   2. http://ssrn.com/abstract=1139885
   3. http://ssrn.com/abstract=1342636
   4. http://ssrn.com/abstract=1287405
   5. http://ssrn.com/abstract=1421486
   6. http://ssrn.com/abstract=1083528
   7. http://ssrn.com/abstract=1326743

[WatchManUSA]

   Panel 2 is 10:45-12:15, "The Second Amendment and Constitutional
   Interpretation." Speakers are Nelson Lund, Allen Rostron, and me. I
   will be speaking about the Second Amendment in the Living
   Constitution.
   

"the Second Amendment in the Living Constitution."   Well, there's your problem right there.  Liberals and liberal judges tend to believe that the Constitution is a living document that must adapt to the times we live in.  A definition of the term "Living Constitution:"

Living Constitution is a concept in American constitutional interpretation which suggests that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.

While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary.

The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.

A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore.  One of its most vocal critics is Supreme Court Justice Antonin Scalia.

[tt11758]

"the Second Amendment in the Living Constitution."   Well, there's your problem right there.  Liberals and liberal judges tend to believe that the Constitution is a living document that must adapt to the times we live in.  A definition of the term "Living Constitution:"

Living Constitution is a concept in American constitutional interpretation which suggests that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.

While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary.

The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.

A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore.  One of its most vocal critics is Supreme Court Justice Antonin Scalia.

I will agree that the Constitution is a living document, insofar as it has lived and guided this great country for more than two centuries.  Sadly, I also believe that the current crop of Washington politicians is doing their damnedest to kill it.  I believe that the founding fathers said what they meant and meant what they said, and that their words have lived down through the generations from that day to this.

Do not try to rewrite the Constitution.  Do not try to reinterpret the Constitution.  Do not attempt to bastardize the meaning of the eloquence of our founding fathers.  The Constitution is the same living document that it was the day it was ratified.  It looks at the world through a lens that is clouded neither by years, nor by human progress.  The Constitution, like those who wrote it, says what it means and means what it says.  If you have a problem with it, amend it if you can.  That is the remedy the founding fathers provided.  They did not intend for their brilliance to be watered-down, bent to fit, or in any other way bastardized to try and make it seem that the document means something other than was intended.

The Constitution is a brilliant document, crafted by people much more intelligent, articulate, and forward-thinking than I.  And much more so than any of the current Washington elite.

Leave the Constitution alone.  Read it, learn it, love it, but don't try to bend it to your own worldview.  That is the ultimate insult to the document and the brilliant men who crafted it.

[WatchManUSA]

AMEN, tt11758!

[shooter32]

The Constitution is a brilliant document, crafted by people much more intelligent, articulate, and forward-thinking than I.  And much more so than any of the current Washington elite.

Leave the Constitution alone.  Read it, learn it, love it, but don't try to bend it to your own worldview.  That is the ultimate insult to the document and the brilliant men who crafted it.[/color]

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