Heller's Friends: The Intellectuals Explore Unintended Consequences

Leibowitz's Canticle ^ | February 12, 2008 | Leibowitz

[Bob Leibowitz]

I'm a sucker for irony, especially for what I think of as intellectual irony, which is when allegedly smart people discover that fate doesn't necessarily follow the path they've set for it. So naturally, I've enjoyed reading the amicus brief filed in support of Heller by The Center for Individual Freedom.

This is the ninth in a series of reviews of the SCOTUS briefs supporting Heller in the landmark District of Columbia v. Heller.

The brief is in two major sections. The first, and less fun but still very useful section, describes how United States v. Miller has been misinterpreted for 70 years by most lesser courts and almost all media. Most readers will recall that Miller was decided in favor of the government based on the Court's the finding that a sawed-off shotgun is not suitable for military work. These authors make abundantly clear two very significant points.

***

The second section is wildly fun. It is here that the authors explore what none have before: What happens if the District wins its argument?

The summary is in the section title

A Collective Right To Keep And Bear Arms Would Contradict Other Constitutional Provisions, Call The National Guard Into Question, And Collide With Existing Federal Firearms Laws

[Bob Leibowitz]

If SCOTUS were to accept D.C.s arguments, the National Guard would need to be restructured and states would have a right to any and types of armament useful for making war.

States could approve citizens, members of their militia, to keep and carry arms currently banned by the federal government.

The 50 states would have a constitutional duty to arm up.

Heller's Friends: The Intellectuals Explore Unintended Consequences

[patton]

Your excerpt of your own writing doesn’t make sense.

[Bob Leibowitz]

Actually it does, IF you read the posting. If you don’t, but merely pop an opinion, you’re right.

[patton]

No, let me restate - what you posted here is internally inconsistent.

What you wrote on your blog is not.

Bad advertising on your part, but good writing on your blog.

[jeddavis]

Absolutely fabulous!!

[Bob Leibowitz]

Ah, rats. Honest constructive criticism.

I agree that the summary is the clearest writing possible and promise to flog the author sometime during Lent.

What I meant to convey is that the first section of the brief is solid and valuable, a great parsing of the Miller decision. BUT, that the second part is just absolutely wonderful fun as the authors point out the logical outcomes that would flow from a decision in favor of D.C.

I think that no one in the District’s camp gave any thought at all to the day after a decision in their favor. I know most attorneys don’t think of such, and politicians almost never think past their next election. But still, this is such a big deal...

Anyway, this review plus my article from two months ago on how I would seek to join a militia, make for some really fun imagineering, as Disnet would say.

Also, thanks for the pointer. You are more correct than I.

[patton]

My apologies if I was harsh - I have been following Heller for a while, and am somewhat interested in the outcome.

I wrote a paper on the case for one of my graduate courses - ah, I got an A-. The teacher was a liberal. ;)

[Bob Leibowitz]

SHOULD have been "not the clearest" writing. 0-2. Thanks again. Good luck with school.

[Hawthorn]

>> If SCOTUS were to accept D.C.s arguments, the National Guard would need to be restructured and states would have a right to any and types of armament useful for making war. <<

IIRC, Glenn Reynolds made the same argument in an article he wrote years ago.

[neverdem]

BTTT!

[supercat]

States could approve citizens, members of their militia, to keep and carry arms currently banned by the federal government.

Indeed, if legislators passed a law in Wyoming authorizing judges to officially induct any and all volunteers into the Wyoming militia who swore to uphold the Constitution of the United States and the constitution of Wyoming, and if the legislature provided that such persons be allowed full-auto machine guns, what argument could there be against that? If the Second Amendment doesn't protect individuals, and it doesn't protect state militias, what would it protect?

[Lancer_N3502A]

For better or for worse, we are in the presence of living history.

[tacticalogic]

States could approve citizens, members of their militia, to keep and carry arms currently banned by the federal government.

Raisch decided Stewart, and now Stewart could overturn Raisch. Ought to be interesting.