Disarming the citizenry vs. the right to keep and bear arms

[Paul Finkelman]

I found Leslie's posting (below) to be a bit divorced from reality; it
is more like the text of a Chalrton Heston speech that a discussion of
either the political reality or the constitutional setting for
discussing the 2nd Amendment.  As far as I know, no commentators, and no
organization, takes the position Leslie suggests woudl be problematic.
The issues for us as con law scholars (and citizens) to discuss involve
concealed weapons laws, "cop killer" bullets, machine guns, tracers for
determining the source of explosives, internet sales of guns, background
checks, and the like.  Just because the 2nd Amendment does not protect
an individual right to own a weapon does not mean that suddendly
Congress can ban all weapons and seize those out there.  Imagine, for
example, what would happen to the environment if we prevent deer hunting
and were suddenly overrun by deer?

Leslie posting reminds me of the rather extreme antifederalists of
1787-88 who argued that under the constitution the Sultan of Turkey
could be elected to the US Senate.  As federalists pointed out, the
constitution did not guarantee people the right to marry, be buried, or
even shave or get their hair cut.  But, that does not mean Congress
could ban such activities.  Similarly, just because the 2nd Am. deals
with the "well regulated militia" does not mean that politically there
is any chance of the sort of think Leslie is writing about.

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu





>
>
> Leslie Goldstein writes:
>
>      Whatever may have been the late 18th century understanding of the
>      2d
>      Amdmt, are there some of us out there who would not feel like
>      there was
>      something that clashed with the amdmt. if the Congress enacted
>      tomorrow
>      a bill announcing the total disarmament of US citizens (on the
>      rationale
>      that just too many Americans are being killed by gun violence and
>      we
>      have a severe labor shortage and immigration is not as good a way
>      of
>      dealing with the problem as cutting down on murders would be).  I
>      would
>      be uncomfortable with that, even though I support lots of gun
>      control
>      legislation, and I am not much of a states rightser.
>



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