Noah Feldman Defends First Amendment Support for Second Amendment

Gun Watch ^ | 23 September, 2016 | Dean Weingarten

[marktwain]

Noah Feldman is a Harvard law professor and a prolific author.

On 17 May, 2016, Noah Feldman somewhat grudgingly, but honestly, explained why Second Amendment supporters keep winning in the courts.  I wrote about it a few days later:

In the Post and Courier article, Feldman is having an difficult time explaining why the Second Amendment should *not* be a fundamental right.  From the postandcourier.com:  

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.

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.

Noah Feldman has written another article, explaining why the courts should protect the publication of plans to build common weapons under the First Amendment.  From dailyrepublic.com:

Although the impulse to block the easy creation of untraceable weapons is admirable, the court got it wrong. The First Amendment can’t tolerate a prohibition on publishing unclassified information – even if the information is potentially harmful.

I admire Feldman's willingness to apply logic to the subject at hand, even though he dislikes the outcome.  You do not see that very often in the fight over the Second Amendment.  Feldman's logic is impeccable.

What’s more, Congress in its wisdom hasn’t prohibited Americans from making their own AR-15 parts at home. The fact that the conduct is legal is an overwhelming reason to conclude that directions on how to do it can’t be prohibited without violating freedom of speech.

Judge Edith Jones said as much in dissent. I don’t agree with Jones, a Ronald Reagan appointee, that often, but when you’re right, you’re right. She pointed out that the panel never squarely addressed the question of Defense Distributed’s likelihood of success on the merits in upcoming litigation.

When free-speech rights are in the balance, a long delay in publication is as good as the denial of the First Amendment. Defense Distributed has already been prohibited from speaking for three years.

I disagree with Noah Feldman a fair amount.  He has written, for example, that the interpretation of the Second Amendment as an individual right started with the Heller case in 2008.  That is not correct. But writing about the First Amendment, and the implications in this case, he is right.  As he says: when you are right, you are right.

Hats off to Noah Feldman.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

[marktwain]

Feldman follows the party line when he says that the interpretation of the Second Amendment is a recent innovation.

But he is right in saying that we are gaining ground as it is being treated as a fundamental right.

[Aetius]

Edith Jones...wasn’t she rumored to be one of the finalists for what turned out to be the disastrous, horrible nomination of David Souter?

[Celerity]

In my personal opinion, the right to own and bear arms is NOT a constitutional right, and not exactly a fundamental right either.

It’s a GOD GIVEN right. I don’t care what our founding father said on the issue. I don’t care what the SCOTUS says. God has given us brains to create things and we created weapons.

[PapaBear3625]

Way back in the Dred Scott v Sanford (1857), the Supreme Court's reasoning as to why free blacks should not be considered citizens:

It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, ...to sojourn there as long as they pleased, to go where they pleased ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went

These are the recognized rights of white citizens in the 1800's, which the Court found inadvisable to allow to blacks.

[Pecos]

The Declaration of Independence recognized the (obvious) inalienable right to life. Self-defense is an integral part of that inalienable right. [Hoplophobes are invited to simply not fight back when attacked if they feel that strongly about the subject.] Although I agree wholeheartedly with your sentiment, God does not have to be invoked to make the argument. Self-defense is a simple corollary of the right to exist.

[Celerity]

“God does not have to be invoked to make the argument. Self-defense is a simple corollary of the right to exist.”

I’m reminded of an old Spyderco marketing brochure. “All of nature’s creatures have knives”. The deer has antlers and hooves, the bear has teeth and claws. The rabbit is a little bastard in it’s own right and it runs like a rocket.

Human beings have no such defensive. We have brains. Those brains invented the tools and weapons that make us who we are.

Without invoking the name of God, we are free to replace it with “Mother Nature” or whatever.

But invoking god is important for discussion - _especially_ if you’re atheist. (!) By invoking God we are standing beside the idea that God gave us these rights ,they are his to take back.

By saying that in our very nature we can have guns will have some dingbat counter arguing that we aren’t “naturally oriented at all anymore” and somehow attempt to prove that we no longer need these things because we aren’t cavemen.

This is why it’s important to invoke the name of God in this argument. Rights that are given by someone can be taken back by that someone. That’s why the Constitution mentioning “god given rights” is important. If the rights were given to you by the government, they are in the position to take those rights away.

And I don’t think God will be showing up anytime soon, with a booming voice echoing across the plains : “Mister and missus America, Turn em in”