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August 14, 2008

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Frank M. Cook

I see that comments in the New Republic criticize Posner for not recognizing that the original intent of the second amendment was to preserve the ability to revolt. Perhaps, I should comment on the comments in the place where they were made, but I'd prefer to express my views here at home.

While it may indeed have been the original intent of the framers to make revolution possible, using that as the foundation upon which to determine what the clause should mean today leads to a trap. If we are to say that the clause gives individuals the right to arm themselves sufficiently to resist the power of the national army, we must conclude that we have the right to fighter jets, tanks, and nuclear missiles because any insurrection not so equipped would be at a serious disadvantage. Not even the NRA contends that.

Given that, is there no alternative reading short of finding an unlimited right of the government to prohibit the ownership of arms? That would indeed be a very slippery slope.

The DC law said that even with a license a loaded gun could not be kept in a home. Even we liberals understand that having an unloaded gun has no utility. So what we have is a new decision which tells us only the unremarkable proposition that we're going to have to draw a line somewhere in between everyone can have whatever kind of weapon they want, and no one can have any weapons at all.

Of course, much of the article takes issue with the expressed reasoning in the opinions. Being a student of Kurland and Mentschikoff, I put little stock in all expressed explanations. What we have is a narrow holding. Only time and further decisions will tell us how to understand the result.

We've long known that licensing requirements are reasonable. Now we know that a complete prohibition is unreasonable. Let the contest begin.

LAK

Posner shuold be the most conservative member of teh High Court. Scalia is nothing but a Religious, idealogical zealot. Posner pretty much undresses him. It was refreshing to read Posner calling for loose interpretation of the Constitution in situations where the law you're dealing with is centuries old, the social context of those laws has changed dramatically and where behavioral norms vary widely across the country.

What a travesty the Heller opinion was.

Ariel

I agree that it's a bit absurd. The Constitution was originally talking about citizens being able to carry weapons when there was no army to protect them. But when we have a "well-regulated militia" without the citizens' help, can we accurately explain the second amendment to apply here?

(The second amendment is as follows,
"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.")

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