Now More than Ever

Mark Graber mgraber at
Tue Apr 17 17:42:35 PDT 2007

Every now and then I think of writing a book entitled "Now More than
Ever."  The central argument will be that tragedy tends to confirm
preexisting opinions (the constitution hook, for those interested, is
that persons in power in perfectly good faith see tragedies such as 9/11
and yesterday's events as proving that their constitutional vision must
be implemented as soon as possible).  I confess to be for gun control,
but I think I would flunk any student who could not provide rational
arguments as why yesterday's events support and why yesterday's events
discredit a narrow reading of the Second Amendment.

Mark A. Graber

>>> Robert Sheridan <bobsheridan at> 04/17/07 8:12 PM >>>
I appreciate the reaction.

The Constitution has allowed any number of practices that were later  
found wanting.   Call it 'evolving standards' if you'd care to relate  
their abolition to some constitutional law type language that I think  
Justice Frankfurter used.

During the period in which those practices flourished, anyone  
describing what kind of a people we were as a constitutional matter,  
would have to include the practices we allowed by law, perhaps noting  
that there were some objectors.

We're a kind of people who, in the interest of free speech, tolerates  
the sort of notions and speech that provided the radio commentator or  
'shock jock,' Don Imus, with a comfortable living for quite some  
time.  I understand that he had his own program for some three  
decades and generated anywhere from $10-50 million in revenue  
depending on what's included in the accounting since his show was  
broadcast and rebroadcast by larger networks, as I understand it.    
In respect of Imus, it was notable that it was not the government  
which brought him down for his execrable 'ideas,' but private  
individuals, that is broadcasting companies and their advertisers.   
In the separate Janet Jackson accidental breast-baring incident,  
nationally televised at the Superbowl a few years ago, it was  
government which imposed punishment, thru the FCC.  This  
juxtaposition says a lot about us, constitutionally.

When it comes to the First Amendment we seem to have a government- 
regulated marketplace of ideas, or at least of some words, in the  
broadcast context, in which the direst of consequences, that is,  
being thrown off the air, is/was imposed by the private, not  
government sector.  The Imus case thus appears to involve a subject  
embraced by this list.  Good ideas are supposed to drive out bad, as  
I understand Justice Holmes's famous analogy, in a sort of Gresham's  
law of free speech, I'm sure I'm not the first to observe.  Only with  
Imus, it seems to work in reverse, at least until some 'critical  
mass' or 'tipping point' is reached, or maybe it's just 'the straw  
that broke...'

Further to the kind of people we are, which I've suggested is the  
fundamental question of Conlaw, whether we bother to state it or not,  
since it seems so obvious that we tend to take it for granted,  
yesterday we had the worst massacre, the slaughter of innocents,  
since Wounded Knee, in this country.  A private individual purchased,  
apparently lawfully, at least one handgun which he used, perhaps with  
another (at least one was reported to be a semiautomatic Glock 9mm  
which holds a considerable number of rounds in each clip), to kill 32  
college students and wound sixteen more.  That is a lot of blameless  

However we also seem to have a relatively free marketplace of guns in  
this country, as well as ideas.  Almost anyone not under some legal  
disability may walk into a gun store, identify himself, and within  
two weeks obtain a handgun and thereafter wipe out innocent people  
simply because he was mad in the clinical sense and concealed it, or  
went mad later.

If this happened only once, one might say that this has nothing to do  
with us as a people.  But given the long track-record of senseless  
shootings, or shootings that, upon investigation do make sense in the  
way Shakespeare described it, "there's-method-in-his-madness,' it  
seems fair to say that we're the kind of people who would rather see  
office-building shootings by angry men, postal shootings by angry  
workers, Columbine-type shootings by angry high school students, and  
Virginia Tech type shootings by angry college-age men, to pick a few  
examples that readily come to mind, than to adopt more stringent gun  
control laws.

There are those who cite the Second Amendment in this regard, trying  
to make a reality of a disputed claim of right, as I understand it.   
I believe there's a case that says this right pertains to armed,  
government authorized, protective militias.  I've read comments from  
some of the more modern, informal 'militia' types that suggests their  
desire to possess deadly weapons is to use them against our own  
government, should it get in their way.  They point to some  
tyrannical regimes which disarmed the population before wreaking  
their depredations.

It seems to me that we're an undecided country when it comes to guns,  
just as we were an undecided country for a long time before we  
abolished slavery and for a long time before trying to abolish Jim  
Crow.  We're the type of people who say, in effect, that we're  
willing to tolerate people like John Hinckley who shot President  
Reagan to gain the attention of a Hollywood movie actress, and who  
shot John Lennon, rather than take the guns out of the hands of  
people who don't seem to need them for any legitimate purpose except  
that it feels good to possess them someplace.

I cant' help it if this is the kind of people we are, for on balance,  
politically, and legally, this is what we suffer to happen without  
taking effective measures against these repeated massacres of the  
innocent.  We are, in effect, saying, that we will expend innocent  
lives in order to keep as many guns as the market will bear in the  
hands of many thousands of people, of whom it is a statistical  
certainty that some terrible percentage will use them to commit  
Columbine or Hokie tragedies.  Having adopted our present legal  
posture, the only question is where and when this will happen again.

At some point, I should think, the country is going to have to make a  
choice about whether we will continue to tolerate further senseless  
killing by unbalanced gunmen in order to allow all the lawful hunters  
and hobbyists the pleasure of their honorable pursuit, and whether  
the alleged right to keep and bear arms has to do with government  
sponsored, government protective militias, or to allow gunmen to  
protect themselves against government authority should government  
policies be to their disliking.

The relatively free market in gun purchase and possession seems like  
a high price to pay, when you consider that you send your kids to  
college in the hope that they'll be able to make a contribution to  
society someday.


On Apr 17, 2007, at 4:02 PM, guayiya wrote:

> The Constitution does more than "allow" things.
> There are things we allow to happen that actually happen and things  
> we allow to happen that don't; things we require to happen that  
> always happen and things we require to happen that don't always  
> happen; things we forbid that never happen and things we forbid  
> that do happen.
> No?
> Daniel Hoffman
> Robert Sheridan wrote:
>> The underlying question which defines the subject of  
>> Constitutional  Law, asks what kind of people we are.
>> Constitutional law provides the answer to that question, at least  
>> for  the time being, and is, as we know, subject to change over time.
>> The kind of people we are is defined by what we allow to happen  
>> over  and over again.
>> rs
>> sfls
>> _______________________________________________
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