Chemerinsky’s problem
Date: Mar 15, 2007 2:08 PM

Chemerinsky has a more fundamental problem: the inability to do honest and
competent historical scholarship. There are no “strong historical arguments”
for a “collective rights” interpretation of this or any other provision
of
the Constitution, or for an outright ban on possession as “reasonable
regulation”. All rights are individual. There is no such thing as
“collective rights”, only the individual rights of collections of people.
As for “reasonable regulation”, he is correct that there can be reasonable
regulation, but constitutionally only in one direction: toward making
militia more effective and efficient. There can be, as in the Militia Act of
1792, a requirement to have weapons, but not a requirement not to have them.
Militia commanders can regulate the men under their command: they can, for
example, regulate that a militiaman carry a shotgun and not a rifle for
sentry duty, and a rifle and not a shotgun for sniper duty. He can require
his men to declare the weapons they bring to a formation, so he will have a
way to assess their combat capabilities, but not to declare everything they
may leave at home, other than to require that they bring any weapons of a
certain kind if they have any.
Regulation of firearms and militia is just like regulation of the time,
place, and manner of elections: Only in the direction of efficiency and
fairness. Congress may require congressional elections to keep the polls
open from 7:00 AM to 10:00 PM, but not to only open them for one
microsecond. It may require there to be a polling place for each precinct of
3000 people, but not that there be only one polling place for the entire
state. It may require that balloting be secret and accurately counted, but
not that votes be subject to the scrutiny of officials of only one party and
counted only by members of a single party. The power to regulate, like any
other power, is not “plenary as to those objects” (as Justice Marshall
opined in Gibbons v. Ogden, 22 U.S. 1 (1824)). All delegations of power, but
not rights, are supposed to be “reasonable” only, which means only for
certain legitimate public purposes, and the question of whether they are
reasonable in this way is justiciable as to whether it is constitutional.
For example of unreasonable we see the amicus brief of Ted Cruz for the
State of Texas argue for the individual right to keep and bear arms, but
hold that a reasonable regulation is a prohibition of possession to those
convicted of a crime punishable by incarceration for a year or more. As I
have shown in a law review article, Public Safety or Bills of Attainder?,
University of West Los Angeles Law Review, Vol. 34, 2002,
http://www.constitution.org/col/psrboa.htm , it is a violation of due
process and the prohibition on bills of attainder to do so. A statute may
prescribe that the penalties imposed in a sentence include a disablement of
the right to keep and bear arms, but not to legislatively disable a right
not disabled in the sentence, to some class of persons, even those convicted
of a crime.
The Founders took a lot for granted in the way they wrote, so that they did
not anticipate all the ways future generations might try to twist their
words. But a competent historian is supposed to be able to get into the
heads of people of a different place and time, to understand things as they
understood them, not as a modern person, from a different background, might
want to understand them.

– Jon

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The Second Amendment IS Homeland Security !