Skip to comments.Judge Bork on the 2nd Amendment & Gun Control [Free Republic]
Posted on 03/12/2004 8:40:14 PM PST by tpaine
Judge Bork on the 2nd Amendment & Gun Control Constitution Opinion (Published)
Source: Slouching Towards Gomorrah
Published: 1996 Author: Robert Bork
Posted on 03/14/2000 15:45:37 PST by Publius
Gun control, though advanced with religious fervor and harrowing tales of loved one shot to death, is no less frivolous. The real argument against severe gun control is one of policy, not constitutionality.
As law professor Daniel Polsby demonstrates, "the conventional wisdom about guns and violence is mistaken. Guns don't increase national rates of crime and violence - but the continued proliferation of gun control laws almost certainly does." Gun control laws raise the cost of obtaining a firearm. This is a cost the criminal will willingly pay because a gun is essential to the business he is in. He probably will not have to pay the increased cost, because illicit markets adapt to overcome difficulties. There are, moreover, nearly 200,000,000 firearms in the United States now, many of them unregistered, and it is easy to smuggle guns in or to make them in basements and garages.
A gun need not be state of the art to serve a criminal's purpose. Criminals will never have difficulty getting guns. The citizen who wants a firearm for self-defense will not have access to illicit markets and will be deterred by the higher costs charged in legal transactions. The result is a steady supply of guns for criminal aggression and a diminished supply for self-defense.
"It is easy to count the bodies of those who have been killed or wounded with guns," Polsby remarks, "but not easy to count the people who have avoided harm because they had access to weapons. People who are armed make comparatively unattractive victims. A criminal might not know if any one civilian is armed, but if it becomes known that a large number of civilians do carry weapons, criminals will become warier." Gun control shifts the equation in favor of the criminal. Gun control proposals are nothing more than a modern liberal suggestion that government, which is unable to protect its citizens, make sure those citizens cannot defend themselves.
The Second Amendment states somewhat ambiguously:
"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."
The first part of the Amendment supports proponents of gun control by seeming to make the possession of firearms contingent upon being a member of a state-regulated militia. The next part is cited by opponents of gun control as a guarantee of the individual's right to possess such weapons, since he can always be called to militia service.
The Supreme Court has consistently ruled that there is no individual right to own a firearm.
The Second Amendment was designed to allow states to defend themselves against a possible tyrannical national government.
Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose.
A golden oldie from last year where it set off a very long debate. -Pubulis-
(Excerpt) Read more at freerepublic.com ...
B.S.! They didn't do so in Miller, and they didn't do so before then either. In fact, according to Kopel et. al they have ruled in favor of that right repeatedly, as part of larger arguments about other rights.
Oh my. This is tripe. Unless, of course, a person ceases to be a citizen by engaging in an illegal transaction (i.e., argument by definition of terms). I am a citizen, and I have access to every market that I care to engage. So does every other person on the planet.
Even in California.
That the following assertion is false: "The citizen who wants a firearm for self-defense will not have access to illicit markets"
"It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them 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. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."
Taney argue that "to keep and carry arms wherever they went" was a right of "citizens in any one State of the Union." They right to keep and carry (bear) arms was a right on the same level as "the full liberty of speech in public and private" and the right to travel between states without "pass or passport, ... or obstruction."
In 1856, the right to keep and bear arms was recognized as an individual liberty by the Supreme Court.
If that's not enough, Taney also opined, "Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. "
Again, the right to individually keep and bear arms is listed as a fundamental liberty as the right to trial by a jury and the right to avoid self-incrimination. Can anything be so clear?
The Fourth Amendment was designed to allow citizens to defend themselves against unlawful searches and seizures. Now that the federal government has eavesdropping capabilities far beyond what the Founding Fathers could have imagined, it is hard to imagine why people would need to be protected by something as old fashioned as a requirement that the government fill out a search warrant before searching a citizen's house. -Judge Bork-
If that's Bork's idea of original intent doctrine maybe it's just as well he never made it to the USSC bench. Anyone who thinks the author's of the 2nd amendment intended it to guarantee a state-regulated militia's right to bear arms hasn't studied or understood the background of the amendment.
In 18th century parlance the phrase "well regulated" simply meant well trained. When asked who was the militia as mentioned in the 2nd amendment, Madison answered to the effect that it is the whole of the people, except for a few public officials. The term "people" in the 2nd was also used by the authors in several other amendments in which there is no doubt whatsoever about it's meaning. Why do judges and justices claim to believe it has an altogether different meaning in that one amendment? Personally I don't think they believe that, it's just a convenient way to attempt to justify their incorrect interpretation of an amendment they don't like.
When the Constitution was being written the Americans had just come through an eight year war of independence against the most powerful nation in the world. Without the privately owned arms of the early unorganized militia forces in New England the revolution might have been crushed at the onset before it gained enough momentum to be supported by the rest of the colonies. Also, throughout the war private arms made up an important part of the Continental Army's and Navy's arsenals. The authors knew that well enough, and that was the primary reason for the 2nd amendment, to insure that privately owned arms and the unorganized militia would always be available to provide a bulwark against tyranny, whether foreign or domestic. Anyone who honestly reviews the reasons for the 2nd amendment must come to the conclusion that it was intended to guarantee an individual right, and not a corporate right as so many now claim. Granted, it was intended to guarantee an armed militia, BUT we the people ARE that militia it was intended to guarantee.
I'm sure Bork knows what the author's intended, he just doesn't believe their intent was a good idea. IOW he doesn't believe the "common people" can be trusted to possess weapons, a belief typical of the elitists among us.
Bork's statements regarding the 2nd concern me, not because he will be on a court, but because I now wonder what the supposed conservatives on Bush's list of judicial appointees believe, or rather want to impose on us, concerning the amendment. Any candidate, conservative or liberal, who puts his own notions of what is best for us above the known intent of the authors on any issue shouldn't be given a seat on the court. The question is how many, if any, candidates for judiciary appointments currently in Bush's waiting room have the integrity to place the intent of the author's above their own personal prejudices and beliefs if elevated to the court. If we are to judge by Bork, considered to be a solid conservative constitutionalist, who it seems would be willing to subvert the intentions of the authors in order to avoid nullifying most of the nation's firearms laws, I'm afraid not many of Bush's appointees have that integrity either.
And that reinforces my belief that we can only prevail on the issue through the legislative branch and the political process, and that to depend on the judicial branch to uphold the RKBA will only lead to disappointment and eventual loss of the right completely. After all is said and done, the facts are that the judiciary at it's upper levels is composed mainly of elitists, and historically elitists have always been reluctant to allow commoners to be armed.
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