What Kind of People We Are

Tue Apr 17 19:13:27 PDT 2007

	Two thoughts:

	(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
protective militias."

	(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
cut it.

	Eugene

> -----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.
> 
> 
> rs
> sfls
> 
> 
> 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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> >> <guayiya.vcf>
> 
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