Posted on 06/06/2016 4:52:00 AM PDT by marktwain
Noah Feldman is a Harvard law professor and a prolific author.
In an op-ed in The Post and Courier, Noah Feldman has penned an article that grudgingly admits that the Second Amendment is a fundamental right deserving as much respect as the First Amendment. Feldman gets much wrong. For example, he declares that the Supreme Court found that the Second Amendment is an individual right for the first time in 2008. From bloomberg.com:
The evolution of gun rights has an internal legal logic to it. The contemporary story starts in 2008 with the case of D.C. v. Heller, a 5-to-4 decision in which the Supreme Court declared for the first time that gun ownership was an individual right, not a collective right of “the people” to organize into militias.That characterization of the Heller decision is a favorite of disarmists, but it is false. The Supreme Court never found that the Second Amendment was a "collective right". The "collective right" theory was created out of whole cloth by the Kansas Supreme Court in 1905. The muddy Miller decision in 1934 did not say that the right was a collective one, even though that test case was heavily manipulated by the Franklin Roosevelt administration. There are plenty of previous Supreme Court decisions that declare the Second Amendment to be an individual right, though they do not strike down laws.
With that, the court embraced the old slogan that if you outlaw gun ownership, only criminals will have guns. The court then held that the regulation wasn’t narrowly tailored because the city would have to prove that its scheme made people safer than any less restrictive alternative. And it said it was “skeptical” that such proof could ever be possible. The regulation would only be narrowly tailored, he said, if it were “targeted at keeping guns away from people who are likely to misuse them or situations where they are likely to be misused.”Then Feldman writes this bombshell statement, for a person on the left:
City lawyers tried to argue that the regulation simply restricted the time, place and manner of bearing arms, limitations that are permissible even when applied to the free-speech protections of the First Amendment. But the court replied that the analogy was flawed — which of course it is. A law that prohibited you from speaking while on the street but let me speak while at home wouldn’t be permissible. The analogy to free speech is one that belongs to advocates of gun rights, not to the other side.Feldman clearly comes at the issue from a "progressive" lens, with the idea that "rights" are what the government decides, not originating in natural law. In a previous article, he proclaims that rifles such as the AR-15 are not useful for self-defense, without a shred of evidence to back such a claim. He does so out of pure subjective personal preference. From bloomberg.com:
The U.S. Court of Appeals for the D.C. Circuit will have to review this decision. But it’s worth noting that, astonishing as the reasoning sounds, it makes logical legal sense once the right to bear arms is treated as a fundamental right comparable to free speech.
That leaves the view that there’s something special about weapons that can be used both for self-defense and for militias. According to Scalia, those are the weapons that the people who ratified the Second Amendment had in mind.But that view is nonsense. First, AR-15s are not "assault weapons". They are the civilian version of the M-16, having been altered to make them semi-automatic. That makes them specifically designed for civilian use and useful both for self defense and militia use. Second, many firearms experts extol the virtues of AR-15 and similar rifles as being especially suitable for home defense, for all the reasons that they would be useful in military operations.
Today, that includes handguns. But it doesn’t include assault rifles. They’re great for military purposes, and no doubt fun to shoot on the range. But they aren’t useful for self-defense, almost by definition.
Robert Bork asserted the same at his senate confirmation hearings.
Is that why most police departments have moved from the shotgun to the AR in their police cruisers? Because they're not useful for self defense?
Thanks marktwain.
When are these morons going to get it right?
The Second Amendment PREVENTS the government from violating a fundamental right. Same as the first amendment does.
Noah Feldman Admits that First and Second Amendments are Fundamental Rights and water is wet.
Whether the AR-15, or any other firearm for that matter, is useful for personal self-defense is utterly irrelevant in determining whether or not the 2nd Amendment protects the right of the owner of such firearm to own (and bear) it. All that is relevant is whether the firearm is useful AT ALL for militia duties (which is the standard that the “Miller” Court set up in 1939 and, in the same decision, ignored). Given that ANY object may serve as a weapon (or, in the term used in the late 1700s, an “arm”), then EVERYTHING is protected. Don’t believe that? Then you (the collective you, NOT marktwain) don’t know a thing about the history or weaponry of special forces world wide for the last 100 or more years.
Clearly, Noah Felman is full of crap - he is STILL wrong about the 2nd Amendment...but at least he’s moving in the right direction.
Anyhow, NO ONE is taking away 400 million firearms from this nation’s civilian population. Yes, 400 million: http://gunwatch.blogspot.com/2015/09/us-will-reach-400-million-private.html
Just another left-wing Harvard buttboy.
ARa are not useful for self defense? Really. Less danger of penetrating bedroom walls in a house, larger magazine than handgun, can be used as a club if necessary. Add a nice light and red dot and you are good.
No might about it. They are fun to shoot. Now I may have to take mine to next recoil therapy session later this week.
I see your:
Who the heck is this Noah Feldman?
And raise you a:
WTF is a Noah Feldman?
Life and liberty are fundamental rights. The 1st and 2nd Amendments are merely tools necessary to protect those rights.
Therein is the flawed thinking from a person who should know better.
The Bill of Rights did not grant rights. The Bill of Rights protects rights from government interference. Protection from the very idea this person espouses.
Example: Congress shall make no law...
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