The Second Amendment is Back, Baby

" The syndicated daily podcast fourth Thursday September 18 2008. And -- the brown today we bring you one of the highlights of the constitution day discussions at the Cato Institute. Clark immediately co counseling Supreme Court case that killed the DC gun ban. Discuss the aftermath of the case and just -- disappointed in -- with the dissents written there. This is a short segment of this talk the full constitution day audio is available at Cato -- work."

" as everybody in the room knows I assumed that Heller case produced a five to four decision in which majority of the Supreme Court interpret the Second Amendment as protecting an individual right. Essentially what it was and there there are three opinions. Justice Scalia wrote the majority opinion for five justices. And then Justice Stevens. And Justice Breyer. Each wrote dissenting opinions in which all the dissenting justices joined in other words all four dissenting justices joined -- dissenting. Opinions I would say that most of the action in the Heller decisions. -- comes down to a kind of an original is duel between Justice Scalia and Justice Stevens they go over the attacks and the history of the Second Amendment. Reach opposite conclusions about its meaning. But -- for it takes you on a really wonderful and I think fascinating tour. Through history not only the history of the drafting in the Second Amendment even the history that preceded that. Terms of the the English bill of rights common law and what was essentially the intellectual underpinnings for the Second Amendment. What the go through the decisions and tremendous amount of detail but I will say this. The about a lot of criticisms of the justice scalia's decision some people. Who are various fervent gun rights advocates say that he essentially. Through portions of the Second Amendment under the bus. There are very strong implications of the decision for example that machine guns would not be constitutionally protected he did come out and say although it's Dick. That for example felon in possession laws would be upheld dangerous than usual weapons can be outlawed. All my position is that probably none of that was ever really on the table I think it's very difficult to imagine that a court that ruled. Five to four that the most sweeping gun -- in American history was unconstitutional was lightly or was on the verge of protecting machine guns and rocket launchers I'd just don't think that was in the cards. As I think justice scalia's decision is really about the best that could have been expected by people. Who interpret the Second Amendment as protecting an individual right and I think you get a really really nice job of supporting that point he did and very thorough. Exit just as well with the text and the history of the Second Amendment and I think came up with a very compelling argument for why it protects. An individual right. I think that the stevens' decision is seriously inadequate in many different ways and I'm just going to talk about a couple of those right now. The first and maybe the most profound. Is that Justice Stevens never really adequately grapples with the following issue."

" The rights protected by the bill of rights were not created."

" By the bill of rights they predated the bill of rights so for example I mention this in the article. There's a pretty well known thought experiment where you go back in time to 1790. So it's after the the adoption of the constitution but -- before the ratification of the the bill of rights. Could it really be the case that Americans had no right of free speech no right -- free press or religion just because those things hadn't been written down yet. And the answer is obviously no. Those worthy. The rights. That were specifically mentioned by Thomas Jefferson those of the -- inalienable rights mention the declaration independence and they predated. The adoption both of the constitution and of the bill of rights."

" And the Second Amendment the right to keep and bear arms was emphatically one of those so this is the right that predated. The adoption of the bill of rights and I think it's ludicrous to suggest that the Second Amendment was intended to constrain that natural right."

" To keep and bear arms to limited or to shrink it in some way and so what you really need to come to grips with what you think Justice Stevens never dies. Is what was the content."

" Of the natural right. To bear arms the one that predated the adoption of the Second Amendment would be arguably ambiguous language about the militia and he never really does that I think that's the single most."

" Glaring problem with his decision renders it on persuasive. The other thing I think renders justice stevens' decision on persuasive is that he never tries to grapple with the significance. Of his interpretation of the Second Amendment. "

" Early on the decision he says that protects the right."

" To use weapons in certain military settings. What in the world does that mean."

" So you get drafted into the army and I tell you assault a machine gun nest but they won't give you a -- you get to go to federal court for an injunction saying I would really like to have a gun for this -- and the Second Amendment says I get one."

" And there's a lot written about this problem so it's not as if it was hiding in the shadows -- right out there in the open. I think Justice Stevens in the other dissenting justices failure to come to grips."

" With this basic problem. That their interpretation of the Second Amendment is essentially meaningless."

" Or that it produces absurd results like that states for example should have a right to have F sixteens and tanks to serve as a counterbalance to lose the federal standing army. The failure to grasp read and to address these issues further undermines their opinion."

" I'm not going to say much about justice breyer's dissent essentially what he does he says I totally agree with Justice Stevens but even if he's wrong. The Second Amendment should be subject to this balancing test that I'm just gonna -- on the spot. It's a proportionality thing and since I don't really need -- to defend myself at home nobody needs -- going to defend themselves at home."

" And that's a bit of a caricature but not much read the decision NC can disagree. Again he -- the same result that the solicitor general would have only doesn't overtly and says Second Amendment once I subject my balancing test to it."

" I think that what DC did here by disarming all of the people in the entire district Colombia was reasonable and I would let that stand."

" I'll close by saying this no matter how you feel about the Second Amendment. It doesn't matter whether you like to -- to keep and bear arms there's probably some constitutional right somewhere that you do care about. And if five justices were willing to engage in the kind of reasoning that the dissenting justices did in -- When he came to your right that you care about that right would be on absolutely. So -- I think is serves to underscore the importance of respecting rights in this country even the ones that we don't personally care about. And I think that respecting rights is important body politic and Heller was a wonderful wonderful -- thank you."

" believes a senior attorney at the institute for justice. He served as co counsel to Dick -- in the case that overturned the DC gun ban. And he wrote the article -- that decision. For the new edition of the -- Supreme Court review you can order your copy at -- store dot or."