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.
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.
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.