Comments on: Gunfight at the OC Corral

By: Michael D. Fox

Michael D. Fox — Mon, 16 Feb 2009 20:27:56 +0000

My own view of the Second Amendment is neither the individual rights reading (based on the phrase “the right of the people”) advanced by the pro-gun lobby and adopted by the Court in Heller nor the professional state militia reading (based on the phrase “A well regulated Militia”) advanced by pro-gun control advocates.

Rather, I believe that the Second Amendment was intended to protect the people’s militias.

The drafters of the Second Amendment wanted to prohibit the federal government from using its new authority under Article I, Section 8 of the Constitution over both “Armies” and “Militia” as a pretext for undermining or destroying the traditional democratic, local, and non-professional (i.e., popular) nature of the various state militias.

In other words, neither the modern individual rights view nor the state militia view of the Second Amendment is correct.

Rather, what was meant in 1789 combined elements of both views to protect the people’s militias.

Constitutional scholar Akhil Reed Amar calls this interpretation of the Second Amendment the “republican reading, as opposed to the states’-rights or individual-rights readings that dominate modern discourse.”

But the people’s militias that the amendment protected in 1789 no longer exist– they were transformed long ago into the National Guard and are now run, like the regular army, by the Defense Department.

The entire amendment, therefore, is anachronistic.

Of course, even if it is anachronistic, the Second Amendment (unlike the people’s militias of 1789) still exists and the courts, which can not declare it irrelevant, still have to find some way of having it make sense in the 21st century.

In any event, arcane historical questions about what the drafters of the amendment meant in 1789 don’t really control the issue, even if the courts (and litigants) must pretend that it does.

The real, relevant questions are not constitutional or historical, but have to do with the concrete and contemporary issues articulated very powerfully in the debate we’ve seen here in the comments – that is, should guns (concealed or not) be available to law abiding citizens in the United States in 2009 for their protection.

My opinion is that they should.

By: Alester Smythe

Alester Smythe — Sat, 14 Feb 2009 10:48:44 +0000

Your anecdote was a bit to heavy. I liked it but it detracted from your point.

By: Carl Overmyer

Carl Overmyer — Sat, 14 Feb 2009 02:40:34 +0000

Michael,
While I started the post a little tense I find myself in agreement with most of what you said. NorthCoStorm is very correct that there were only a few “connected” CCW’s that were issued and that almost all of those in flux now are NOT of that type. Remember that if the sheriff had simply applied the stricter standards, she wishes, on new applications and renewals, there would have been outcry, but not like we have now. She is solely responsible for the mess that has taken so much time, money and energy form the Co and those who are being, “expired early” a category that has never been attempted by ANY other sheriff or police chief in the state before. Along with her FU attitude toward those she “serves” and the BoS, it does not bode well for her future. I’m very pleased to see an even post from you, here on this issue. Thank you, well done!
Now let’s see if we can get the Sec. of State to expire her term in office early for misleading statements in the interview process, poor management of resources and nonperformance after being sworn in. At the very least, we have good cause for complaint. That’s more than she has in “expiring early” most all those she wishes to take CCW’s from.
BTW State law allows sheriffs or police chiefs to issue CCW’s

By: Northcountystorm

Northcountystorm — Fri, 13 Feb 2009 21:10:26 +0000

Nice post, although the plot lines, much like Hollywood, play liberally with the actual facts.
Good analysis on Heller. Regardless of that case I think Hutchins has handled the CCW issue poorly. Lumping “Carona’s Compadres” in with people who didn’t pay to play” in a retroactive putsch to LosAngelize the concealed weapon permit process was unwarranted and revocation certainly not justified in most cases.

Ultimately, the 3 Board members who voted for Hutchins(Moorlach, Nguyen & Bates) and are now complaining about the policy should have bothered to find out what her policy would be before they voted for her. Having come out of the “No guns, No way” Los Angeles system should have been a clue to the 5th floor that she would honor the second amendment more in the breach than the observance.