Chemerinsky: Wrong on the Second Amendment

As you know, Erwin Chemerinsky came to speak at the Athenaeum.

He didn't speak about the Second Amendment at the gathering. (You'll have to tune in tomorrow to get my reaction to what he said. It will be meaty and of course, advocate against the racism he extols. It's going through the intense fact checking process that I've now instituted.)

The Second Amendment will be the subject of a Supreme Court case this term.
Oftentimes constitutional thinkers have debated the merits of the individual versus collective argument, with the emerging consensus being that the Constitution as applied through the Fourteenth Amendment is that the Second Amendment is an individual right.

Is it an individual right? Is it a collective right as applied through the states? The obvious original intent of the Founders -- as Akhil Amar and even the liberal Alan Dershowitz have noted -- is that the Second Amendment is a personal, individual right. In an article found here, Chemerinsky tries to state that liberals believe that the state can regulate that right, but liberals have been abandoning that position in droves.

That Chemerinsky has abandoned that argument -- an argument he used to favor -- for the regulatory argument indicates the strength of the individual rights argument.

Here he is talking about that argument -- namely that even if the Court recognizes the individual argument, the Court can regulate some restrictions on gun ownership.

"The Court should rule that the government can regulate firearms, consistent with the Second Amendment, so long as it acts reasonably," says Erwin Chemerinsky, a constitutional law expert at Duke University. "This is the standard used in assessing the constitutionality of other government regulation of business."

He is probably obliquely referring to the case decided in '39 that decided sawed off shotguns are not protected.

To say, though, that the regulations in the Heller case are anything other than destructive to that liberty is laughable. Judge for yourself. Here are the restrictions that the plaintiff is fighting.

The United States Court of Appeals for the District of Columbia Circuit struck down sections of the Washington gun law that make it exceedingly difficult to legally own a handgun, that prohibit carrying guns without a license even from one room to another, and that require lawfully owned firearms to be kept unloaded.

So, if we assume that self-defense is a natural right -- which is undeniably is -- then how can this restriction that makes it so that someone essentially has to assemble a gun all the while under the stress of somebody busting into their home is enabling of that right?

It isn't. And the Court, if it's read its history, will say unequivocally that the Second Amendment is an individual right and that hand guns, which have deterred untold numbers of crimes, are not comparable with sawed off shotguns.