Friday, April 28, 2017

20th Annual Firearms Seminar - Prof. Nelson Lund

Professor Lund gave a constitutional overview of the Second Amendment.

He went over the 5 methods of understanding the Second Amendment

1. Original Meaning - Amendment meant to protect an individual right to arms for self-defense. Basically people assumed Feds could not regulate and states could do as they pleased. There's a lack of early historical guidance.

2. Reasonableness review - Since there's a lack of early historical guidance states can take a reasonable stance which often upholds any law as long as it does not completely destroy the right is ok.

3. Justice Breyer's dissent view - should be strict scrutiny with cost-benefit analysis thus creating an intermediate scrutiny review. This sort of review makes it hard to distinguish it from a rational basis review where the law is almost always upheld

4. Scalia's review - Presented as an originalist view but doesn't present an originalist view as dies not look at the scope of the right to keep and bear arms. Scalia rests opinion on popularity of handguns and that it is reasonable for handguns to be popular and makes it resting on a 5-4 decision and dicta that approves of various bans.

5. Normal jurisprudence - Treating Second Amendment like any other fundamental right. As Judge Sykes in 7th Circuit City of Chicago case, Broadly prohibitory laws are categorically impermissible, some laws may be permissible, all other laws subjected to scrutiny where government bears burden and depending on closeness of the law to the core of the right it may or may not be obtained and government's justifications must be scrutinized.

Lower Courts have unanimously upheld may issue standard and onerous burdens that makes the right to bear arms a nullity.

He noted that most on the Supreme Court are fine with treating the Supreme Court and only three may be treating it seriously even counting Gorsuch among the three.

Prof. Lund noted that both Progressive and many Conservative elites (Such as George Will and Charles Krauthammer) are against citizen ownership of firearms and gin control is an important agenda item for the Democrat Party. He noted Heller and MacDonald are small steps toward protecting the Second Amendment and still could be reversed with a single anti appointment to the Supreme Court.

He stated there needs to be a Liberal (in the original sense of the term) principled defense of the Second Amendment based on Locke and Blackstone. He noted it is to protect ones own life and liberty or to prevent despotism.

He stated the 18th century militia idea is no longer effective but that on an individual basis the teaching of firearms usage would be to foster a sense of self reliance and efficacy for free citizens and enhance their defense and safety in an age of crime and terrorism.

He stated gun control laws have been found to be ineffective failures and are propounded by the elites with armed bodyguards are busy looking down and advocating the disarmament of the normal citizenry.

He stated that much of gun control is based on magical thinking and the assumed power of gun free zones which are ineffective except for criminals using them for easy access to unarmed victims.

He stated infringements of the right of self defense harms the core value of the American Republican Spirit and the basis for our institutions and fundamental liberty. He stated conservatives, including conservative intellectuals, need to be more supportive of the Second Amendment as an individual right as part of republican virtues and the underpinnings of the Republic.

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