Miers on the Right to Keep and Bear Arms:

David Kopel

The Volokh Conspiracy

October 3, 2005

http://volokh.com/archives/archive_2005_10_02-2005_10_08.shtml#1128378033

The New Republic’s fine &c blog points to a 1992 article she wrote for

the Texas Lawyer. In the article, she points to three infamous multiple

homicides in Texas: the 1966 Texas Tower Shooting, in which a man

climbed the clock tower at the University of Texas, and shot 14 people.

(He was finally stopped when two policemen and a civilian rushed the

building.) The second was the 1991 Killeen massacre, where a man

entered a Luby’s Cafeteria, and methodically slaughtered unarmed 23

people. (The incident played a major role in Texas rescinding its ban

on carrying concealed handguns, and enacting a Shall Issue permit law.)

The third incident in Miers’ article had taken place recently; a man

murdered two judges and two lawyers in a Fort Worth courthouse.

“How does a free society prevent” such crimes, she asked. She then explained:

The same liberties that ensure a free society make the innocent

vulnerable to those who prevent rights and privileges and commit

senseless and cruel acts. Those precious liberties include free speech,

freedom to assemble, freedom of liberties, access to public places, the

right to bear arms and freedom from constant surveillance. We are not

willing to sacrifice these rights because of the acts of maniacs.

Miers, however, rejected the notion that “precious liberties”,

including “the right to bear arms,” should be sacrificed in the name of

crime prevention. Quite obviously, she was referring to the “right to

bear arms” as an individual right.

It’s technically possible that she was referring only to the Texas

Constitutional arms right, which clearly is individual, rather than to

the Second Amendment. However, the context of the quote does not seem

so constricted, and even to describe the Texas right a precious liberty

says a good deal about Ms. Miers’ thinking.

She then explained the true solution to crime:

We will be successful in solving our massive crime problems only when

we attack the root causes….

We all can be active in some way to address the social issues that

foster criminal behavior, such as: lack of self-esteem or hope in some

segments of our society, poverty, lack of health care (particularly

mental health care), lack of education, and family dysfunction.

I agree, and have argued in the Barry Law Review that much-improved

pre-school programs for at-risk boys would be far more effective, in

the long run, at reducing violent crime than would gun control or even

more draconian “conservative” federal criminal laws.

As far as I know, you have to go back to Louis Brandeis to find a

Supreme Court nominee whose pre-nomination writing extolled the right

of armed self-defense. (I’ll fill in the details on him in a subsequent

post.) And even Brandeis had not specifically mentioned “the right to

bear arms” as one of the “precious liberties” that “We are not willing

to sacrifice.”

Many web writers have raised legitimate questions about Miers. In terms

of the right to arms, however, Americans who love their precious

liberties need not hope about the unknown, but need only expect her to

be consistent with what she has already said.