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Let me get this out of the way. Writing for The National Review, Andrew McCarthy offers a completely bone-headed argument for government infringement on Americans’ natural, civil and Constitutionally protected right to keep and bear arms.

The right [to keep and bear arms] is not without limitations. As we shall see, like “the freedom of speech” safeguarded by the First Amendment, the right to keep and bear arms had well-known limitations at the time it was adopted . . .

As the Supreme Court explained in Heller (op. at p. 54 & ff.), “the right to keep and bear arms” that pre-existed the Constitution had certain longstanding, well-known limitations on it. Those exceptions were understood to be incorporated in the right guaranteed by the Second Amendment.

Convicted felons and the mentally ill, to take the two clearest examples, may be denied the right to keep and bear arms. Nothing prevents Congress from codifying these longstanding limitations, and federal law has long done so. But again, these are limitations understood to be built into the Second Amendment, not additional, emergency-based restrictions that erode the Second Amendment.

Uh, no. If you accept that the prohibition against gun ownership by felons and the mentally ill is OK because they’re “long-standing, well-known limitations” you have to accept the idea that the right to keep and bear arms is a collective right. That was a “long-standing and well-known limitation” — before Heller and McDonald restored the Founder’s original intent and kicked-it to the curb.

That out of the way — and I really wish it was — McCarthy rips Senator Schemer a new one for suggesting that it’s OK to infringe on Americans’ gun rights because terrorist attacks constitute an emergency. Just as the government performs warrantless searches during exigent circumstances.

Schumer could not be more wrong. At its core, his argument misreads the Fourth Amendment safeguard, which protects citizens against unreasonable searches, not warrantless searches. The latter are permitted in many contexts because, in those contexts, it is not unreasonable to search without a warrant . . .

Pace Schumer, reasonable warrantless searches are not emergency-based exceptions to the Fourth Amendment. They are straightforward applications of the Fourth Amendment. Moreover, they could not be, as Schumer implies, post-constitutional restrictions on the Fourth Amendment imposed by statute or judicial decision. The Framers’ very point in enshrining certain rights in the Constitution is to prevent the government from restricting them.

McCarthy’s essay at least partially redeems itself with this bit:

Notice the pertinent language of the Second Amendment: “The right of the people to keep and bear Arms, shall not be infringed.” In stark contrast to the Fourth Amendment, the Second Amendment does not say gun rights “shall not be unreasonably infringed.”

Reasonableness has nothing to do with the matter, nor does crisis management. How could they? The Second Amendment aims to maintain the people’s power of self-defense, including against the government. Since that is the point of the right, nothing could be more unreasonable than to allow its restriction by the government.

Amen.

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69 Responses to National Review: Senator Schumer’s “Emergency” Claim Does Not Justify The Removal of Our Right to Keep and Bear Arms

  1. “The right [to keep and bear arms] is not without limitations.” Retaliation on Usurpation and infringement IS. There finished it.

    Marie Antoinette had boobs perfect enough to inspire champagne glasses, and a two piece neck.

    • Standards of beauty must have changed a lot since Marie’s day. I don’t think I’ve ever seen a champagne glass that made me think, “I wish my wife had tits like that.”

      • Well …… Wikipedia sez …

        The champagne coupe is a shallow, broad-bowled, saucer shaped stemmed glass generally capable of containing 4 to 8 US fl oz (120 to 240 ml) of liquid. Legend has it the shape of the coupe was modelled on the breast of Marie Antoinette, but the glass was designed especially for sparkling wine and champagne in England in 1663. The coupe was fashionable in France from its introduction in the 1700s until the 1970s, and in the United States from the 1930s to the 1980s.

        Sorry to burst so many bubbles …..

    • Cuckservatives selling out everything they claim to care about to people who hate them and attack their base? I am shocked.

  2. It’s nonsense to confiscate guns during an emergency. Since the left loves to throw the term “common sense” around, let’s actually apply some common sense: emergency confiscation will leave those law-abiding citizens defenseless against criminals/looters- scoundrels they are more likely to come into contact with during a big enough emergency. Safe to assume these hypothetical emergencies are due to the authorities inability to respond to whatever…so they can not be depended on. These are the same arguments against gun control in general.

    • Common sense would be to mandate that every citizen is armed, and to facilitate use and interchangeability that means at least 1 ar-15 pattern rifle in 5.56 and 1 m9 handgun in 9mm, 250 rounds of ammo for each, and maintain minimum training levels on each (like 1x year).

      That would be common sense, and frankly would result in a significantly lower crime rate.

      • “Common sense will tell us that the power which hath endeavored to subdue us, is of all others the most improper to defend us. Conquest may be effected under the pretence of friendship; and ourselves, after a long and brave resistance, be at last cheated into slavery…. Wherefore, if we must here-after protect ourselves, why not do it for ourselves? Why do it for another?” ( Paine Common Sense pg. 47)

        If there’s an “emergency” it’s created by the evil POS (D). Round them up, take away their birthday, and we’ll all be ok.

      • @Mr 308 —

        How about we make each month an even 30 days, leaving five days outside any month. Distribute these evenly throughout the calendar, and make them “militia days”, on which every citizen is required to spend the morning in training, and then party the hell out of the rest of the day.

    • Examine history and you’ll find that tyrants often use ’emergencies’ as pretexts for the denial of freedom. Chuck Schumer is a tyrant. He’s also a despicable liar.If this was a just world, he’d be in prison or practicing law in a Harlem closet.

      • Schumer and Feinstein are the two main reasons my 50 year support of Israel has ended. The US needs to exit that region, cease all support and let them fight it out on equal terms. The Palestinians will win in the end anyway, through out-breeding.

  3. Unlike other questions of the limits of government power, if the courts and the Congress fail to do their sworn duty to defend the Constitution, I suspect gun-owners may be the final arbitors of what the 2nd Ammendment means and does not mean.

    • Isn’t that what it all boils down to, in the great firearms debate? Ultimately, as the left continues to drift further from the center and they crow for more and more restrictions and gradual if not outright confiscation, POTG will have to ask the left, “What are you gonna do about it?” Molon Labe if you will, which those who are not tasked with actual enforcement would not mind at all.

  4. I guess the US stands on a precipice of a complete collapse of the US Constitutional-Bill of Rights. A lot sooner than I thought. So, next up Martial Law…And anything goes with US citizens in public or private. Wait until some Libtard whines the wrong way to an “NWO paramilitary police officer. ” They be wishing they had supported the 2nd amendment right quick….As their life flashes across their eyes…But, they don’t hear the political gunshot that snuffs out their life….Authoritarianism….Enjoy….

    • Bill O’Reilly agrees with laws that enable firearms confiscation during an emergency. Just thought I’d leave that here.

      • If such laws specifically also applied to his armed security I suspect he would etaivolb (bloviate backwards).

      • My mother, who has a hard time telling the difference between a revolver and an automatic pistol, knows more about firearms than Bill O’Reilly.

        ….and I consider myself a fan of the man!

        on the subject of firearms, he is without question…clueless.

  5. This might sound callous, but a relatively low-level (arbitrarily, less than 100 dead and negligible disruption to the nation as a whole) attack every 4-6 months does not constitute an emergency. It’s an annoyance and tragic for those involved, but not a national existential crisis.

    Unless the idea is to be in a constant state of emergency … with normal civil rights and protections to resume as soon as the emergency is over, of course. But so long as these things keep happening on occasion, well… And somehow the emergency measures never seem to stop these things from happening.

    • Never let a good crisis go to waste.

      In an emergency the people will DEMAND that you do things they would never permit otherwise.

    • Hitler used the case of a drunk setting fire to the Reichstag to convince the government of Germany to create an emergency decree to suspend civil liberties including habeas corpus, freedom of the press, free association, and public assembly. Hitler’s inner circle pulled out lists of political opponents and systematically imprisoned them. These rights were never restored until the Nazi Party was forced from power by WWII.

    • “Nothing is so permanent as a temporary government program.” — Milton Friedman

      A constant state of emergency, indeed. Once it gets the taste for it, a government’s appetite for control only grows. Give it an inch, it takes a mile.

    • Isn’t it interesting that regular ISIS attacks both on allies and in the homeland is apparently enough of a crisis to throw out the 2nd amendment, but it’s NOT enough of a crisis to actually treat Isis like an enemy in a war. Think about it, when’s the last time a foreign entity carried out more than one attack on US soil without an all out response from the US military? Food for thought indeed

  6. You can never win the ‘collective’ right to keep and bear arms argument with the left. They put their fingers in their ears and go la la la la, I can’t hear you. It’s pointless. Even if a new super powerful simply worded 2nd amendment were proposed and ratified tomorrow they would still call it a collective right no matter what is in the words of the new amendment. Why waste even a single point of blood pressure arguing with that kind of stupid?

    • That is the conclusion that I have come to about this whole thing: you aren’t going to convince any on the pro-gun control side any more than they will convince any of us. Sure there will be some true middle-ground folks you (or they) might convince, and even the occasional open-minded (D) who thinks they are pro-gun control only because that is the party line (however are not true, rabid control nuts). I’ve shot with a few folks like that, who I don’t think I necessarily awoke any sort of passion for guns, but who walked away from the experience with more knowledge and understanding.

    • Well if person A shoots person B and Cop C then arrests Person A he searches their body without warrant after they are in cuffs to ensure they don’t have any additional weapons.

    • Searching the trunk of a car when there seems to be someone kicking and screaming inside said trunk.

    • It would seem that a warrantless search is permissible ONLY in the presence of probable cause that a crime is about to or in the act of being committed.

    • only if there are ‘exigent circumstances’

      basically something is going on that gives the cop reasonable belief that he needs to do something right now or the evidence will be destroyed or a person will be injured or killed.

      Or the policeman’s life could be endangered.

  7. The Second Amendment is there to allow you arms to kill your neighbors (down to every swinging d_ck) when they usurp power and attempt to lord themselves over you. AND IT’S NOT JUST ABOUT “GUNS”, IT’S ABOUT “ARMS” because you may need to hunt them, burn them out, destroy their homes, their hiding places, their food and water sources, their kids, their friends, their supporters, those who sit on fences, their livestock. . .

    ALL RIGHTS RECITED IN (Not guaranteed by) THE BILL OF RIGHTS, ARE PROTECTIONS

    F R O M

    YOUR GOVERNMENT. THEREBY, THEY CAN

    O N L Y

    BE GUARANTEED BY AN ARMED SOCIETY.

    Don’t let your stupid neighbors who needed a job (a/k/a: your “government”) ever make an alternative claim.

    Q: Do you have any other rights?
    A: Not if you don’t uphold the Second Amendment

  8. GUN CONTROL COMES FROM LIBERAL BASTIONS OF EVIL, N.E., NY, CT, R.I., MA, VT, ME, D.C., IL, WA, OR, CA, KY, IA.

    TIGHT EVIL KNOTS OF POS.

    IF YOU ARE FOR GUN CONTOL, I AM FOR YOU CONTROL.

        • McConnell writes his own ‘memoir’ and when asked how, he said he keeps good notes in his journal.

          This idiot can’t even remember his last set of
          [A B A N D O N E D]
          campaign promises.

          Thanks KY Intense, we’re feeling ya.

        • Bevin probably can do way more good as gov, but I can’t help but imagine how better off we’d be if he was there instead of that senile grandma.

  9. I like to think that I have pretty good skills on search engines … for the life of me I can only find one original source article that talks about Chucky Schumer’s request for “emergency powers” to ban firearms.

    A longstanding United States Senator proposes “emergency powers” for the federal government to unilaterally ban a fundamental, constitutionally enumerated right — without due process — and ALL media is silent?

    I have commented in the past that storm clouds are brewing on the horizon. At this point, I think the storm clouds are so close that I can smell ozone and “rain in the air”.

    • Chucky-Doll Schmuker is a (D)head from a tiny piss-ant liberal broken state.

      NY needs to fix its (D) problem, because it’s leadership is running amok, and, while it’s population is large in certain areas thick with stupid-crazy, it’s disarmed completely compared to fly-over country.

        • “compared to fly-over country”.

          Yes you are, because, if you’re not disarmed merely compared to me, I’ll try harder. We’re very competitive out here, and we bury second place.

  10. “Nothing prevents Congress from codifying these longstanding limitations”

    Bullshit. Congress has no powers except those granted specifically to it in the Constitution. Specifically, Congress has no police powers, but it does have the power to regulate interstate commerce. The police power rests exclusively in the states.

    That’s why the AWB did not affect the possession of so-called “assault weapons.” Congress did not have the power to do so.

    Of course, the Constitution counted for more in 1994 than it does now. Just not a lot more.

  11. IF THE “GANG OF EIGHT” (we knew you were turds before you called yourselves a gang, and thereby overtly triggered our need to rise up against you) doesn’t have a problem with OVERSTEPPING THEIR AUTHORITY AND giving away AMERICA with their COMPREHENSIVE IMMIGRATION BILL, THEN THEY CANNOT HAVE A PROBLEM WITH AN “ARMED SOCIETY”.

    NO ONE CAN TELL YOU HOW LONG AMERICA WILL LAST. NO ONE.
    KEEP YOUR GUNS FOR THE END OF AMERICA, AND YOU MIGHT HAVE A VOTE IN WHAT COMES NEXT, BUT (I’m not after your guns) YOU’RE AT LEAST ENTITLED TO MEET ME HALF WAY.

    • Another Constitutional scholar. /sarc

      Congress has explicit authority to pass amnesty for illegals. You can find their authority in Article I, Section 8, paragraph 4.

  12. Yeah those limitations were “built in” and “long standing” – so much so that over 170 years later in 1968 Congress had to actually write those prohibitions down in the GCA. If it was “built in” then Congress did not need to write it/them down at all – ever . . . or it was not built in and was an add-on in which case it is an infringement.

  13. Let me get this out of the way. We need the Second Amendment BECAUSE OF people like Chuck Schumer. People who have been in Washington so long they are oblivious to their own tyranny.

    Any government that can disarm its citizens simply by declaring an “emergency” can disarm you whenever they damn well please. We need the Second Amendment because governments throughout history have disarmed their citizens whenever they damn well pleased.

    • Suzanna Gratia-Hupp already told him that to his face on camera, but apparently it didn’t make any sort of impression.

  14. I’ll acknowledge the elephant in the room. The notion of “emergency powers” is what gives dictators most of their “legitimacy”. In fact, it was “emergency powers” that allowed Hitler to have the Reichstag Fire Decree proclaimed, which suspended the German constitution. This is dangerous territory here.

    • Exactly. Whenever someone in our government recommends suspending our civil rights because of an “emergency,” the hair on the back of your neck should stand up.

      This is one of the hallmarks of tyranny.

  15. seems ta me all this “limitations” stuff is jes whut 2Asux has been a’ whining ’bout all weekend. reckon we know now where he got his ideas, or maybe even his talkin’ points. a’ course, i keep hearin’ all that crap outta austin, too.

  16. The long standing prohibition of felons losing certain right is rooted in the Fifth Amendment’s due process clause. It doesn’t say rights cannot be infringed until the debt to society has been paid. It say rights cannot be deprived without due process of law. Arrest, trial by jury, conviction, sustainment after appeal is called due process.

    It is perfectly constitutional to have a provision in a law banning felons from owning guns for the rest of their lives. If a convicted felon needs to protect himself from harm while not involving himself in further criminal activities he has many self defense options open to him including firearms. He can legally buy a fully functional black powder cap and ball replicas that can do the job. I assure you that getting shot in the chest from .44 caliber cap and ball revolver will kill you just as dead as a modern 9mm, 40 or 45 caliber handgun.

  17. What’s this emergency concerning terrorist attacks to which Schumer refers? Does he think the police should waste time during an actual attack disarming people they know are not involved? Does he think police currently lack the authority to disarm people actually engaged in a violent felony?

    Or is he trying to pretend that an attack that happened weeks ago constitutes an ongoing emergency, despite Congress having taken the time to debate several bills and take a recess in the interim?

  18. …the right to keep and bear arms” that pre-existed the Constitution had certain longstanding, well-known limitations on it. Those exceptions were understood to be incorporated in the right guaranteed by the Second Amendment.

    Convicted felons and the mentally ill, to take the two clearest examples, may be denied the right to keep and bear arms.

    No. Prisoners serving time did not have the right to arms as well as a host of other rights. Convicted felons could bear arms after release until 1968. The writer by his lack of explanation insinuates that this existed from the beginning – which it did not. Mentally ill who were locked up in wards obviously didn’t enjoy much rights. Anyone released could purchase firearms – again a recent change and was not the standard at this country’s founding.

    • Actually, it should be pointed out there is no general prohibition on gun ownership by the mentally ill. Nor should there be, as “mentally ill” is an extremely broad categorization. What the law says is that persons who have been involuntarily committed or adjudicated mentally incompetent are barred from having guns. That’s a much stricter condition, meaning in a nutshell that mental illness has reached the point where the person can no longer be responsible for him or herself.

  19. Hmmm..an emergency like WWII where the gubmint rounded up 110000 Japanese(a majority citizens) or when I hear Bill O’Reilly talk about suspending civil rights in Chiraq? Careful Schumer-a Jewish fella’ should know better(but we love you RF)…

  20. “… Senator Schemer … suggesting that it’s OK to infringe on Americans’ gun rights because terrorist attacks constitute an emergency…”

    Well, Chucky is just borrowing from Proconsul Cuomo-the-Younger’s playbook.

    The Proconsul discovered the “emergency” existence of guns, a mere ~600 years (give or take) after the technology became available. The “emergency” let him force through the “SAFE doesn’t mean that” act, via procedural shenanigans. Hey, why should the Feds have all the fun, using procedural shenanigans to “enact” bills they can’t get past the people or their reps. I’m sure The Proconsul considered this an audition for his potential Presidential run: “See, I can work the system to cheat that way, too. Elect me!” (Sadly for him, at the apex of his political career he’s had two more corrupt, disciplined and vicious competing for the same job, on the same terms. “Be SAFE despite yourselves!” just wasn’t enough.)

    Now Chucky has discovered terrorism, in the 40th anniversary-year of the Israeli raid on Entebbe, stopping a murderous, hostage-taking terrorist operation in progress. I’m certain the athletes who never competed in the ’72 Olympics would have something to say, if they weren’t dead from being killed by terrorists.

    Meanwhile, his proposal such as it is benefits the folks who lost their rake offs and privilege with the demise (kinda) of the Sullivan Act.

    On this one, Chucky is stupid beyond measure, or self-serving – er – beyond measure. He blew it. He’s usually both at once.

  21. Well everything he said after this was wrong. “the right to keep and bear arms had well-known limitations at the time it was adopted . . .” It had NO limitations at the time it was ratified. Cannons we ok, and everything else our forefathers could get their hands on. He needs to actually read and learn history. Not the liberal remake of it, but, the real thing. How things really were.

  22. How does supporting restrictions of the rights for felons or those adjudicated mentally incompetent require acceptance of the “collective right” myth? Felons have been proven to disregard the rights of others and therefore lose certain of their rights until such time as they obtain a pardon. The mentally incompetent present a sadder case. Through no fault of their own, they’re unable to manage their own affairs. Does anyone think Hodor can sign a binding contract, vote, or keep and bear arms?

  23. What Schumer is striving for is the concept of “not competent to bear arms”, which indeed did exist, and those so deemed were not considered part of the militia because of the lack of competency. But he is wrong in claiming it applied to felons and to the “mentally ill”, though some in those categories would be included, namely those considered so dangerous they weren’t to be allowed arms, and those considered so mentally impaired as to not be able to understand their operation. The Founders would have been surprised that the former were even alive and in society, and that the latter were not under caretakers who wouldn’t conceive of allowing them to handle arms any more than they would have allowed a toddler to play with a lit lantern.

    That Schumer does not understand this might suggest that he may in fact belong to the latter category….

    • that ol’ boy doan need tuh unnerstan nothinn’, ‘cept how to git on TV and whut will git him re-elected. that’s whut politicin’ is all about.

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