What Kind of People We Are
VOLOKH at law.ucla.edu
Tue Apr 17 19:13:27 PDT 2007
(1) 44 of the state constitutions have right-to-bear-arms
provisions. Virginia's reads, in relevant part, "That a well regulated
militia, composed of the body of the people, trained to arms, is the
proper, natural, and safe defense of a free state, therefore, the right
of the people to keep and bear arms shall not be infringed"; but note
that the last clause, starting "therefore," was added in 1971. It's
hard for me to see how such a provision in a state bill of rights,
enacted in 1971, "has to do with government sponsored, government
(2) It's hard to see what gun control measure would prevent a
mass murderer from engaging in mass murder. A handgun ban? That would
leave rifles and shotguns, which are more deadly than handguns. A ban
on noncitizens' owning guns? It seems only an accident that this
particular killer was a noncitizen. A ban on all guns, coupled with
confiscation of the 200+ million guns out there in private hands. If
there's to be an argument in favor of reading the Second Amendment as
protecting states' rights, or the rights of state-selected armed groups,
I just don't see how an argument based on this particular crime would
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Robert Sheridan
> Sent: Tuesday, April 17, 2007 5:12 PM
> To: guayiya
> Cc: ConLaw Prof
> Subject: Re: What Kind of People We Are
> 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 people.
> 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
> >> 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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> >> <guayiya.vcf>
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