Sunday, October 07, 2007

A Lesson in Lawyers

Fascinating. This is one of the attorneys who are challenging the DC gun ban. He clearly is clueless with regards to gun rights and the debate on gun rights. That is truly frightening.
Neily, who served as co-counsel for the plaintiffs challenging the ban, explained that while some view the Second Amendment as a "collective right," the view that the Second Amendment protects a right of individuals to own guns is likely to prevail. He explained that most legal scholars on the subject support the individual rights theory, and that efforts to advocate the "collective rights" theory appear hypocritical.

"There has been a remarkable diversion to individual rights theory by professors, even liberal ones," Neily said. "Guns are not a big part of my life, but it bothers me when an entire part of the Constitution can be written out when you apply a constitutional theory that liberals would never apply to a right they actually care about. If you imagine the right at stake is one you care about a lot. I think you'll be offended to see a court take it as lightly as they take the Second Amendment." However, Tushnet explained that there is support for the collective rights theory in the wording of the Constitution. The "militia," he said, could likely be referring to the National Guard.
That's right. The National Guard is the militia. Seems to me having a military unit that is paid for and trained and can be called up by the federal government would define this as a federal standing army unit. Yes the state can use them, but they don't control them, fund them, or train them. He goes on to try and walk around the statement by discussing the "unorganized militia" which I frankly don't recall ever having heard of.
According to Neily, even a reading permitting gun ownership for militia purposes would not prevent citizens from owning guns due to the true definition of a well-organized militia. Rather than interpreting the "militia" to refer to the National Guard, a concept the federalists would have hated since it would have looked "too much like a standing army," Neily interprets the use of the word "militia" to refer to the unorganized militia.

"All able-bodied men from 17 to 44 are in the unorganized militia, and that's exactly what was meant in 1792," Neily said. "They actually called out the unorganized militia during World War II. When the unorganized militia is called, you're supposed to bring your own gun. You're actually required to bring your own gun. That's what the word well-regulated meant."
Hmm. Interesting but misses the point that there was no such thing. The "well-regulated militia" was all there was in the time of the writing of the constitution. There was a standing army as well, but that is not a militia. If the militias became an unorganized system later, that doesn't have any meaning to what existed in the time of the writing. WWII is completely irrelevant. No constitutional changes related to the second amendment occurred, so it's not an argument.

Then he lamely falls into the "Bazooka problem."
In addition to discussing the Constitutional theories behind the amendment, the speakers addressed what Tushnet described as the "bazooka problem"- the questionable usefulness of a privately-owned firearm in protecting against an oppressive government with large-scale superior weapons not contemplated at the drafting of the Second Amendment.

Tushnet explained this problem by discussing the two primary purposes people see in the Second Amendment-- self-defense and protection from tyrannical government.

"If we're talking about self-defense, handguns work for that," Tushnet said. "The other purpose we mentioned earlier is to guard against an overreaching government. If that is the purpose of the Second Amendment, the "bazooka problem" really is a serious problem. If the function is that you can resist the government and the government has tanks, then it's not clear what use you're getting out of a handgun."
What a pinhead. A member of a militia never did "keep and bear" cannons. The argument is something made up to scare the stupid. Militia's required there men to show up with their long arm and other relevant items which could include hand guns. They also required bayonets and knives for the men, and swords for the officers. I've yet to see a militia order that required any man to fall in with a cannon.

If this is the best the litigants can do for a lawyer, I think they are doomed.

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