OCALA, Fla., July 10, 2014 — It is said that the only sure things in life are death and taxes. While this might be true for other countries, here in America, there is a third certainty: Debate over the Second Amendment.
The language in the Second Amendment seems clear enough; the right to bear arms cannot be infringed. At the same time, what precisely is “infringement”? Should it be legal for minors to carry concealed weapons? Can there be no gun-free zones on private property? Might the public be able to purchase any sort of firearm on the market?
These tough questions deserve even more intricate responses. Instead, we have shouting matches that are heavy on platitudes and, more often than not, devoid of key facts.
Georgetown law professor Louis Seidman, author of On Constitutional Disobedience, advocates an idea that is sure to make waves. Rather than try to make sense of centuries-old language, he advocates focusing on practical legislation.
“I tend to be skeptical of most forms of gun regulation, but not because someone writing two hundred twenty five years ago told me that I had to be skeptical,” he told me last year. “I’m skeptical because I believe that under modern conditions, most forms of gun control won’t work or, if they were made to work, would not be worth the cost.”
Sanford Levinson is a professor of law at the University of Texas. Among our country’s leading authorities regarding constitutional issues, he interprets the Constitution in an unabashedly contemporary method and wrote Framed: America’s 51 Constitutions and the Crisis of Governance.
“(M)y view is that the best of the Heller opinions was Justice Breyer’s,” Levinson said to me in 2013. “I was equally dismayed by Scalia and Stevens. For me, both of them demonstrated why judges are not reliable historians. That being said, I had no real problem with the result in Heller, so I would have adopted much of Breyer’s analysis but ended up arguing that a truly ‘prohibitory’ regime like DC’s did raise serious Second Amendment issues. My view is that the best brief was that submitted by Paul Clement as Solicitor General, which called on the Court to remand to the DC Circuit for consideration under a more properly focused standard of review.
“The DC opinion, like Scalia’s, notoriously was completely vague about what standard of review courts should use when considering legislation. Alas, the Court couldn’t restrain itself from deciding on its own.”
Eugene Volokh isn’t your average legal scholar.
Born in Kyiv when Ukraine was still part of the Soviet Union, he emigrated with his parents to Los Angeles at the age of seven. By the time he was twelve, he was working in computer programing. Just three years later, Volokh graduated from UCLA with a Bachelor’s degree. Today, he is a law professor at his alma mater as well as the founder of The Volokh Conspiracy, which has become one of America’s most popular legal blogs.
“I think the Second Amendment secures an individual right to keep and bear arms for self-defense (and perhaps for other reasons),” he said to me, also last year. “This right — like other rights, such as free speech — is not unlimited, and some regulations (including ones that I think are unwise) are constitutional, so long as they don’t substantially interfere with people’s ability to defend themselves. But the right is an important right, which legislatures and courts should respect.”
When all is said and done, just what does the Second Amendment really mean? Almost nothing can be said in a comprehensive sense, other than the right to bear arms seems to rest in the eye of the beholder.
Abortion. Gay marriage. Family values.
The GOP talks about social conservatism, but do its leaders really care?
Dr. Paul Gottfried, one of America’s leading conservative thinkers,
talks about this and more on the latest Cotto & Company.
Listen to the show here: