The New Republic has an article by a constitutional scholar named Amar, pushing a clever reinterpretation of the 2nd-in order to defend federal gun control-but not a goofy States' rights argument. I guess that almost all serious Constitutional scholars have rejected the claim that the 2nd guarantees a right only to the State, but they are still trying to justify federal laws on other grounds.
Amar is claiming that the term,"the right of the people," in the 1st, 2nd, 4th, 9th, doesn't recognize an individual right(he terms this a libertarian interpretation), but rather a right of "collective action toward the pursuit of political goals," or somesuch. Not a right of the states, which is absurd, given that the Constitution never mentions the rights of government, but rather governmental powers.
I don't believe that Amar thought thru what he is arguing. It seems he wants to say that the States can duly authorize the militia, which even when organized for action is not a governmental body, but rather made up of citizens acting for the defense of the state, yet at the same time claim that the federal government can decide to regulate arms because "the legal and social structure upon which the amendment is built no longer exists." In other words, since a state hasn't called the militia for training in over 100 years the Feds can regulate all they want.
Amar isn't all bad in this essay. He does concede that the language "keep and bear" arms creates some difficulties for those who'd like to confiscate weapons, but then he brings up the old canard that registration has nothing to do with confiscation. He, in a radical passage, suggests that the 14th amendment might actually have transformed the second into a personal privilege that the Feds would have to defend against state infringment, for example, striking down such things as local gun bans.
However he wants to claim that federal licensing schemes, waiting periods, ammo regs, auto and semi-auto bans are not "infringments" but just common sense regulations within Constitutional powers. He doesn't really justify this but seems to want us to believe that it falls out of his argument.
Overall, the article is a weird amalgam of ideas but it might give insight on the direction that the Federal courts will take on ruling on 2nd amend cases. Basically a position that yes there is a right but no, this law didn't really infringe on it. Essentially as long as we could still own muzzle-loaders the courts would probably rule that the right hadn't been infringed.
Any thoughts on this article?
Amar is claiming that the term,"the right of the people," in the 1st, 2nd, 4th, 9th, doesn't recognize an individual right(he terms this a libertarian interpretation), but rather a right of "collective action toward the pursuit of political goals," or somesuch. Not a right of the states, which is absurd, given that the Constitution never mentions the rights of government, but rather governmental powers.
I don't believe that Amar thought thru what he is arguing. It seems he wants to say that the States can duly authorize the militia, which even when organized for action is not a governmental body, but rather made up of citizens acting for the defense of the state, yet at the same time claim that the federal government can decide to regulate arms because "the legal and social structure upon which the amendment is built no longer exists." In other words, since a state hasn't called the militia for training in over 100 years the Feds can regulate all they want.
Amar isn't all bad in this essay. He does concede that the language "keep and bear" arms creates some difficulties for those who'd like to confiscate weapons, but then he brings up the old canard that registration has nothing to do with confiscation. He, in a radical passage, suggests that the 14th amendment might actually have transformed the second into a personal privilege that the Feds would have to defend against state infringment, for example, striking down such things as local gun bans.
However he wants to claim that federal licensing schemes, waiting periods, ammo regs, auto and semi-auto bans are not "infringments" but just common sense regulations within Constitutional powers. He doesn't really justify this but seems to want us to believe that it falls out of his argument.
Overall, the article is a weird amalgam of ideas but it might give insight on the direction that the Federal courts will take on ruling on 2nd amend cases. Basically a position that yes there is a right but no, this law didn't really infringe on it. Essentially as long as we could still own muzzle-loaders the courts would probably rule that the right hadn't been infringed.
Any thoughts on this article?