Law Prof Noah Feldman Admits First and Second Amendments are Fundamental Rights

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Noah Feldman is a Harvard law professor and a prolific author. In a recent op-ed in The Post and Courier, Feldman grudgingly admits that the Second Amendment is a fundamental right deserving as much respect as the First Amendment.  Still, Feldman gets much wrong. Such as the meaning of the 2008 Heller decision. From bloomberg.com . . .

The evolution of gun rights has an internal legal logic to it. The contemporary story starts in 2008 with the case of D.C. v. Heller, a 5-to-4 decision in which the Supreme Court declared for the first time that gun ownership was an individual right, not a collective right of “the people” to organize into militias.

That characterization of the Heller decision is a favorite of those who want a disarmed population, but it is false. The Supreme Court never found that the Second Amendment was a “collective right.” The “collective right” theory was created out of whole cloth by the Kansas Supreme Court in 1905.

The muddy Miller decision in 1934 didn’t say that the right was a collective one, even though that test case was heavily manipulated by the Roosevelt administration. There are plenty of previous Supreme Court decisions that declare the Second Amendment to be an individual right, though they didn’t strike down laws.

In the The Post and Courier article, Feldman has an difficult time explaining why the Second Amendment should not be a fundamental right.

With that, the court embraced the old slogan that if you outlaw gun ownership, only criminals will have guns. The court then held that the regulation wasn’t narrowly tailored because the city would have to prove that its scheme made people safer than any less restrictive alternative. And it said it was “skeptical” that such proof could ever be possible. The regulation would only be narrowly tailored, he said, if it were “targeted at keeping guns away from people who are likely to misuse them or situations where they are likely to be misused.”

Then Feldman drops this bombshell statement, for a person on the left:

City lawyers tried to argue that the regulation simply restricted the time, place and manner of bearing arms, limitations that are permissible even when applied to the free-speech protections of the First Amendment. But the court replied that the analogy was flawed — which of course it is. A law that prohibited you from speaking while on the street but let me speak while at home wouldn’t be permissible. The analogy to free speech is one that belongs to advocates of gun rights, not to the other side.

The U.S. Court of Appeals for the D.C. Circuit will have to review this decision. But it’s worth noting that, astonishing as the reasoning sounds, it makes logical legal sense once the right to bear arms is treated as a fundamental right comparable to free speech.

Feldman clearly comes at the issue from a “progressive” perspective, with the idea that “rights” are what the government decides they are, not originating in natural law. In a previous article, he proclaimed that rifles such as the AR-15 aren’t useful for self-defense, without a shred of  evidence to back such a claim.

From bloomberg.com:

That leaves the view that there’s something special about weapons that can be used both for self-defense and for militias. According to Scalia, those are the weapons that the people who ratified the Second Amendment had in mind.

Today, that includes handguns. But it doesn’t include assault rifles. They’re great for military purposes, and no doubt fun to shoot on the range. But they aren’t useful for self-defense, almost by definition.

That’s nonsense.

First, AR-15s are not “assault weapons.” They are the civilian version of the M-16, having been altered to make them semi-automatic. They’re specifically designed for civilian ownership and useful both for self defense and militia use (not to mention hunting).

Second, many firearms experts extol the virtues of AR-15 and similar rifles as being especially suitable for home defense, for all the reasons that they would be useful in military operations.

Feldman asserts that the Court won’t accept this view, because then they would have to accept civilian ownership of rocket-propelled grenades and other weapons as well — a false assumption.

The Court has already accepted a limit by allowing more regulation on fully automatic weapons. Feldman doesn’t appear well schooled in weaponry. He makes the novice error of assuming that because AR-15 type rifles are included in legal definitions of “assault weapons” they’re “assault rifles.” It’s an easy error for a lawyer to make.

Rocket propelled grenades are already in a separate federal legal category from semi-automatic rifles. That line is likely where the current court will hold on Heller and Heller-generated challenges to the Second Amendment.

It may be that Feldman will come around to this view. He seems to value intellectual honesty, in spite of his factual errors. If he comes to understand that disarming the populace doesn’t confer any real advantages to society, he may switch sides. He seems to be moving in that direction.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch

comments

  1. avatar jwm says:

    At it’s heart this is a fight for civil rights. If any American citizen is denied any of their civil rights it is an offense to all and should not be tolerated.

    Desegregation of schools was forced at bayonet point. I expect my fair share of civil rights to be treated as equally as important.

    1. avatar uncommon_sense says:

      Unfortunately, there are a lot of nasty people in the world who most assuredly do NOT respect our unalienable rights. Even more unfortunate, many of those people are politicians, bureaucrats, and law enforcement personnel.

      In the end, it doesn’t matter whether our attackers look like a homeless drug addict, urban thug, or the CEO of a global corporation. Nor does it matter whether our attackers are acting alone or part of a group. And it doesn’t matter whether that group is a criminal syndicate or a legislature (but I repeat myself). All of them will take whatever they want from us — and keep taking it — until we actively fight back and forcibly stop them. That is a simple fact of life. Best be prepared for that reality.

  2. avatar Anonymous says:

    he proclaimed that rifles such as the AR-15 aren’t useful for self-defense.

    Then why are the cops equipped with them. Why is the secret service equipped with them????

    1. avatar Peter Charles says:

      There is an error in the interpretation of “well regulated militia” . The militia at the time was that the civilian militia which was ll males 16 to 45 years, and they were REQUIRED to keep a firearm(s), shot, powder, food supply, water, fire starter, bed roll, and be proficient in there use. The assault rifle of the day was any long gun. The amendment is open ended as most knew that there were developments that would continue, as they has seen matchlocks, doglocks and the “modern” flint lock, PA/KY rifles, even the Ferguson breech loading flintlocks, so they knew there would be many changes in armes in the future.

  3. avatar RetMSgt in Pa. says:

    You wrote, “First, AR-15s are not “assault weapons”. They are the civilian version of the M-16, having been altered to make them semi-automatic.”

    I do believe, Sir, that you have it backwards. It was the semi-automatic AR-15 that came first, which was then altered to make it a select-fire M-16. In short, a CIVILIAN rifle modified to become a MILITARY rifle.

    1. avatar Removed_californian says:

      I can’t be quoted, but the first rifle was indeed named “AR15” later designated as M16.

      The original original rifle was the AR10, and that definitely was select fire. The ar15 came after that, got redesignated as the m16, and then adapted under the original name of ar15, but in semi auto.

    2. avatar Stinkeye says:

      Nah, Dean had it right in the article. Colt was selling select-fire versions to military customers for four years before developing the semi-auto version for civilian sales in 1963.

      Technically, the designation “M-16” came after the civilian version went on sale (1964), but the rifle was originally designed as a select-fire infantry weapon from the beginning.

      1. avatar Sam I Am says:

        FYI –
        “The M16 rifle, officially designated Rifle, Caliber 5.56 mm, M16, is a United States military adaptation of the ArmaLite AR-15 rifle.”
        https://en.wikipedia.org/wiki/M16_rifle

        “During the early 1950s, ArmaLite, a division of Fairchild Engine and Airplane Corporation of Hollywood, California, was working on a new assault rifle. The chief engineer was Eugene M. Stoner (1922–1997), described by many as the most gifted firearms designer since John Browning. His first attempt to create a new assault rifle was designated the AR10 (ArmaLite Rifle model 10)….The AR-10 was the first weapon to incorporate Gene Stoner’s patented (U.S. Patent No. 2,951,424) gas system….In December 1955, the first AR10 was presented to the Infantry Board and School at Fort Benning, Georgia, by Gene Stoner and George Sullivan, an ArmaLite executive…..General Wyman ordered 10 of these new rifles, along m with 100,000 rounds of ammunition, for Infantry M Board trials. ArmaLite’s W focus was thus changed to the 22-caliber rifle and the AR-15 M (ArmaLite Rifle model 15) was born. In 1958, General Wyman ordered the Army to conduct the first tests on the new AR-15…..On February 19, 1959, Colt’s Patent Firearms Manufacturing Company of Hartford, Connecticut purchased the rights to the AR-15 and AR-10 from Fairchild Stratos (ArmaLite) for a lump sum of $75,000 plus a royalty of four and a half percent on all further production of the AR-15 and AR-10. Colt also paid Cooper & Macdonald (a sales group who did a lot of work in Southeast Asia) $250,000 and a one percent royalty on all production of AR-15 and AR-10 rifles.”
        http://www.gundigest.com/article/the-ar-16m16-the-rifle-that-was-never-supposed-to-be

    3. avatar int19h says:

      The thing that came first was called AR-15, yes, before it was adopted by the military and because M16. But AR-15 was already fully automatic, because it was designed for the military market to begin with. Using AR-15 to designate semi-autos for civilian market came later.

  4. Well dough. Not to mention the other 8 in the bill of rights, along with ALL the other amendments.

    1. avatar Cliff H says:

      Carefully reviewed I think you will find that the ten amendments that make up the Bill of Rights include approximately 27 enumerated natural rights that the Founding Fathers felt deserved special Constitutional protection. Your count may vary slightly from mine, but they are most certainly NOT one right per amendment.

  5. avatar george from fort worth says:

    ah got me a question fer ya. is there anythin that would convince you (ttag and readers) that the right to have a gun does not mean that you can have a gun for whatever ya want, but only if you are officially part of a proper militia?

    ah didn think so. ifn ya caint be convinced, then why would ya think anythin ya (we) could say to the other side will be achangin their minds that gun ownership is not an individyule right? nuthin’. so why do we keep reading and talkin about how dumb and wrong and whutever, them folks are?

    1. avatar Geoff PR says:

      “so why do we keep reading and talkin about how dumb and wrong and whutever, them folks are?”

      Because, George, by *not* engaging in that debate, that allows them to claim they won it, when they most certainly *haven’t*.

      “See? They’re not denying guns are (evil, bad, dangerous, scary-looking, makes them ‘feel unsafe’, gives them bad breath, smelly armpits or whatever the hell else they can think up)”

      1. avatar george from fort worth says:

        lak ah said, ifn you will not be achangin your mind, no matter whut, why wast time on someone just as stubborn and hardheaded as gun owners? or are ya athinkin that them gun haters kin somehow be changed, but gun owners will never change?

        it would be better to be a discussin how to deal with laws already on the books, travelin with a gun, new guns, old guns, holsters n stuff.

        1. avatar Geoff PR says:

          “lak ah said, ifn you will not be achangin your mind, no matter whut, why wast time on someone just as stubborn and hardheaded as gun owners?

          A lie that is repeated often enough, and long enough becomes truth by default. We *must* refute that, and yes, it is true that there are those sitting on the fence that CAN and Do get converted from being anti.

          “it would be better to be a discussin how to deal with laws already on the books,”

          Laws are being created by the antis. They *must* be challenged at every opportunity, or we will lose those rights.

          “travelin with a gun, new guns, old guns, holsters n stuff.”

          Lots of that is here in TTAG.

          Have you bought a gun or accessory particularly cool? Write it up and submit it, TTAG is always looking for gun related articles…

        2. avatar Matt K says:

          I’m afraid Geoff is right George, that’s how it works over here in the UK. They control the terms of the debate, they set the stage, hell they pretty much own the debating hall.
          Once they’ve been doing that for a generation or so you’ll find yourself voiceless in the wilderness, so fight them every step of the way – every time they bend the meaning of a word, every time they try to base some piece of b*llsh*t legislation on that, every time they try to belittle choices they don’t like or understand.
          Because believe you me if you leave the bully pulpit to them you’ll turn around one day and find they’ve whipped up the kind of lynch mob guns are no defence against.

        3. avatar george from fort worth says:

          so fight them every step of the way

          theres a heap a differnc between persuadin and fightin. ah only said stop tryin tuh change any minds of people stuck permanent and unbendin. if our representatives doan wanna represent us, then thow em out. make em pass the laws we need to put a stop to losing ar rights. ain’t nobody gonna make then anti gun nuts think differnt, we gotta outnumber em in the law makin.

    2. avatar Wilson says:

      “ah got me a question fer ya. is there anythin that would convince you (ttag and readers) that the right to have a gun does not mean that you can have a gun for whatever ya want, but only if you are officially part of a proper militia?”

      No, and for good reason. Those people are flat out wrong. The whole set of “You’re not in a militia” or “There is no militia” or “The National Guard is the militia” are smashed by 10 U.S. Code § 31, which clarifies who exactly the militia is.

      “(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
      (b) The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”

      Now, so, by default all males 17-45 are eligible to be “drafted” into the militia while women and older/younger men are not excluded but merely not “draftable”. Other people may join if they wish. This is evidenced by the fact that during WWII women living on the West Coast were recruited and trained by the military as a civilian based militia because there were so few men of fighting age left. Said ladies were trained in the use of and issued Thompson M1928A1 submachine guns which they took with them to their houses and then (mostly) returned to government arsenals at the end of the war.

      This is not some ancient law from the 1700’s either, this became the law of the land in 1956.

      Government authority over the militia is vested in Congress and is rather specific. See Article 1, Section 8 of the United States Constitution.

      You will no more convince me that anti-gun arguments revolving around the militia have merit than you will convince me that water is not wet or that the sky is not blue.

      1. avatar george from fort worth says:

        well, from an anti-gun perspective, yur wrong, jes plain wrong ! an a lotta other things, too.

        my point was not who is and ain’t militia. it was how dumb it is to spend time lookin at anti-gun articles, havin a notion that you (we) kin persuade any anti gun people to change their minds. they ar jes as hard-headed about their ideas as we are. ah think the yankee word for our sitcheation is “irreconcilable”. lets spend time on figgerin out how to run em outta town, and readin gunn and ammo stuff.

  6. avatar Ralph says:

    “Law Prof Noah Feldman Admits First and Second Amendments are Fundamental Rights”

    On the contrary, he is clearly of the opinion that carrying a gun in public is not a fundamental right and laments any court holding that they are. Hence the headline, “Courts are getting ‘gun rights’ wrong.”

  7. avatar RickP says:

    Am I supposed to get a warm -fuzzy because some employee of the state “agrees” that the Second Amendment is a fundamental right? Phhhffffttt.

    1. avatar Jim Bullock says:

      No, but maybe take heart that even this guy was backed into conceding an inch, in public. Now, we pocket the win, and use the quote as the starting point for working further, and to bludgeon every ill-informed nincompoop who argues otherwise.

      We won’t convince the Bloomie-funded flacks or other nincompoops with this. However, it plays as a legit argument to the audience – conveniently because it is – plus will cost the operatives energy, an argument, and credibility, every time. Once their credibility is softened up, add in a few factoids as in the above article – meaning of “militia”, meaning of “arms”, and spurrious invention of collective right from a decision not by Supremes that doesn’t say what they claim – and we’ve made some progress.

      Every time they lie, make it cost them time, energy, credibility, arguments, and a few among the unconvinced. Since they can’t stop lying…

      1. avatar Sam I Am says:

        These seem to work:
        RULE 1: “Power is not only what you have, but what the enemy thinks you have.”
        RULE 2: “Never go outside the expertise of your people.”
        RULE 3: “Whenever possible, go outside the expertise of the enemy.”
        RULE 4: “Make the enemy live up to its own book of rules.”
        RULE 5: “Ridicule is man’s most potent weapon.”
        RULE 6: “A good tactic is one your people enjoy.”
        RULE 7: “A tactic that drags on too long becomes a drag.”
        RULE 8: “Keep the pressure on. Never let up.”
        RULE 9: “The threat is usually more terrifying than the thing itself.”
        RULE 10: “If you push a negative hard enough, it will push through and become a positive.”
        RULE 11: “The price of a successful attack is a constructive alternative.”
        RULE 12: Pick the target, freeze it, personalize it, and polarize it.”

  8. avatar Geoff PR says:

    We know something’s a-gonna be happening. Gun rights are ascendant in many areas and descendant in other areas like Connecticut and California.

    The question is, how can we leverage that decision to our benefit for the embattled residents of the less-free states (Cali in particular with Gun-Apocalypse)?

  9. avatar Andrew Lias says:

    If the AR-15 is not a defensive weapon, then the police should abandon use of it immediately. They have no need for an offensive weapon, that is what the military is for.

  10. avatar Henry says:

    “But it doesn’t include assault rifles [sic]. They’re great for military purposes…”

    Assuming he was talking about “assault weapons,” I usually smash this argument by challenging the speaker to name one military in the world that issues the AR-15 (semiautomatic) to their armed forces. The risk in this argument is that in some backwater of the world, there may be one fifth-world hellhole where in fact they do exactly this. Does anybody know of one?

    1. avatar peirsonb says:

      I would wager such a country could come by com bloc surplus a lot easier than semi auto only ARs.

      The cartels can, you know, unless they’re gift wrapped….

  11. avatar DaveL says:

    They’re great for military purposes, and no doubt fun to shoot on the range. But they aren’t useful for self-defense

    Excuse me, but since when is self-defense not a military purpose? It’s not a purely military purpose, of course, but it is most certainly a military purpose, and an important one.

    In fact, I’d argue it is the primary purpose of the service rifle, with the role of offense being filled by crew-served and support weapons. Hell, back in the days of black powder muzzle loaders, it’s certainly arguable the weapons of offense were artillery, the bayonet, and the cavalry sabre. When Napoleon attacked he formed his troops into a column and marched to bayonet contact with the enemy, who invariably formed lines in the defense to give better volume of fire. The column didn’t do much firing, it didn’t have the frontage for effective volleys. Its purpose was to slow attrition from incoming fire so enough troops would make it into bayonet range.

  12. avatar Geoff says:

    “The Court has already accepted a limit by allowing more regulation on fully automatic weapons. Feldman doesn’t appear well schooled in weaponry. He makes the novice error of assuming that because AR-15 type rifles are included in legal definitions of “assault weapons” they’re “assault rifles.” It’s an easy error for a lawyer to make.

    Rocket propelled grenades are already in a separate federal legal category from semi-automatic rifles. That line is likely where the current court will hold on Heller and Heller-generated challenges to the Second Amendment.”

    I have not seen any more regulation of machine guns since the Hughes Amendment to FOP in 1986 which banned the sale of modern select fire weapons to civilians.

    As for the RPGs and other weapons, they are classified by the ATF as “Destructive Devices” and if you have the money and can pass the the background check, you too can own a Rocket Propelled Grenade. Just remember that each and every one of the rockets will cost you $200 to the ATF and whatever the cost of the rocket might be.
    The only “weapons of war” you cannot own are Weapons of Mass Destruction (WMD). you know, nuclear bombs, ICBMs, long and short range missiles, etc.
    Tanks, working cannon or not (but live ammo is a DD), howiitzers (live ammo is a DD), and many other military weapons.

    www autoweapons com/products/destructivedevices.html

    1. avatar Wilson says:

      I seriously thought about getting into destructive devices until I found out it’s basically impossible.

      “Practice” ammo is available. You pay your $200 for the launcher and then for each projectile unless it’s a pretty small charge. If you’re talking about something like a 40mm grenade, the legit HE or other “weapon” grenades have something like 32 grams of Comp B or similar, which are legal under BATFE rules.

      You have to have an explosives license however to have the HE/other cool grenades and that will include not just federal but also state and local ordinances on the storage of explosives. Expensive but doable. There is another problem here though, and that is you’ll likely end up filing fraudulent paperwork with the BATFE if you just want to have one of these things and the nades for it in your “NFA collection”.

      Then there’s the real problem. While you can get BATFE approval for the legit projectiles they’re almost impossible to buy unless you can provide the company that makes them what they consider to be a valid reason for you to have it. If you can show for example that you’re working on RPG resistant armor, a company will sell you the rounds for your testing. If you can’t provide that sort of reason and evidence to back up what you’re claiming, they won’t sell you the gear so a company like Airtronic USA is just going to tell you to fuck off. I haven’t researched this in awhile but as of a few years ago I was unable to locate a single manufacturer of things like RPG’s or 40mm grenades that would sell one to a private person with NFA approvals.

      Smoke, signaling, practice rounds sure. Real deal? As far as I know impossible for peons like us to get a hold of legally.

  13. avatar iowaclass says:

    Here we go again. The old “not a machine gun” canard.

    I would like it to be made perfectly clear, once and for all: is it TTAG doctrine that a speed-trigger AR-15 with 30- or 40- 0r 60-round magazines is not subject to a ban under the Second Amendment, but a vintage BAR with a 20-rd mag and a selector switch can be constitutionally outlawed post-’86?

    If the answer is “yes,” fine. You have adopted an incoherent principle that just so happens to conform to present law.

    If the answer is “no,” then please stop drawing meaningless distinctions between a true automatic weapon and the still-legal “bullet hoses” for sale today.

    Bottom line: the Hughes amendment will be the eventual death of the civilian AR-15, especially if the gun press keeps legitimizing the Hughes amendment by trying to play “gotcha” with every journalist who fails to particularize the distinction between full- and semi-auto.

  14. avatar AnarchoCatholic says:

    +1
    I’m in favor of no government regulation of heavy weapons and explosives all the way up to nuclear weapons.

    1. avatar Henry says:

      Because, of course, anybody who has the bucks to afford a nuclear weapon, and really WANTS a nuclear weapon, probably already HAS a nuclear weapon, law or no law. Such a law is about as stupid as a gun-free zone law, and for the same reason.

  15. avatar Wibbins says:

    I love how stupid lefties keep spouting “but muh well regulated militia”, militias are regulated by the US code, what next? The next part of the statement says the right of the people tkba shall not be infringed.

    1. avatar Sam I Am says:

      “…but muh well regulated militia”, militias are regulated by the US code”

      Again, (general question, not disagreeing with Wibbins) how does it come to be that the government to be controlled by the states, and the several militias of the states, arrogates the “right” to regulate militias, and otherwise dictate the means and measures the states (the people) may use in exercising control of the central government?

      Answer: the issue of state sovereignty was settled in 1865; states have not been sovereign since; mere subdivisions of the national government.

      The abrogation of the 10th amendment was not done by constitutional amendment, but by force of arms, and a later SC decision. Legislation and court rulings destroyed the heart of the constitution – control of the central government by the individual states. There is no recovery from this. Mere legislation, by court precedent, can and does negate nearly every aspect of the constitution.

      Need contemporary proof? Bill Clinton’s wife just announced the central government has the RIGHT to regulate provisions of the constitution, individual rights.

  16. avatar LHW says:

    Attack an AR 15 owner and see how ineffective it is.

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