-----Original Message----- From: Dan Gifford [mailto:[EMAIL PROTECTED] Sent: Wednesday, December 12, 2007 4:36 PM Subject: GIULIANI AND THE SECOND
About the only upside I've found to being stuck in Los Angeles traffic is that I get to listen to some of the radio talk shows that I never otherwise hear. Yesterday, I happened to catch Hugh Hewitt's exchange http://www.townhall.com/MediaPlayer/AudioPlayer.aspx?ContentGuid=8d8ee91 4-40f0-4a15-b935-bba45ada9cd3 with former New York City mayor and present Republican presidential hopeful Rudy Giuliani on several subjects. The one I've transcribed below concerns the Second Amendment. Opinions vary about what Guiliani really believes about gun rights and what he would actually do if elected President, but as I was transcribing the interview (audio at the above site), it struck me how difficult it is to transcribe him (and how glad I was no longer a reporter having to do so) because of his halting, back tracking speaking style. That makes him come across to me as somewhat less than believable. I get the feeling he is uncomfortable with the Second Amendment subject because he doesn't really believe in it. Giuliani's words, however, say that he has been educated by the Washington, DC decision overturning that city's gun prohibition law and that he now sees matters differently. If that means Guiliani is truly educatable, it speaks volumes in his favor. The bothersome part of his having to be enlightened by a court decision on the Second about facts, intent and history that most Americans have implanted in their DNA is the implicit "the constitution means whatever judges say it means" notion of living constitutionalists that an an enumerated "right of the people" -- meaning an individual right -- can be given, taken away or dramatically altered depending on the social lifestyle or political whim of someone wearing a black robe. According to Historian Bruce Kaufman, who's piece follows the Hewitt-Guiliani back and forth: "We will see what the Supreme Court thinks." Indeed we will. But as University of Texas law professor Sanford Levinson quoted in his Yale Law Review piece about "The Embarrassing Second Amendment": "If the Second Amendment isn't worth the paper it's written on, what price the First?" Hardly a new slippery slope notion but one that is at least as troubling as the uncertainty expressed by Guiliani's comment that the Constitution "gives" individual's rights. A red light flashes whenever I hear a politician or judge use that word or others like "allows," "affords" or whatevers instead of "guarantees" regarding rights that were understood since the founding of this country and before as fundamental individual rights that government has no authority to abolish or alter. FDR and his Attorney General, Homer Cummings, understood that because the original 1930s federal firearms law he got Congress to enact was based on Congress' authority to regulate interstate commerce since he and the lawmakers then understood the Second to be an individual right which they had no authority to legislate against. -Dan Hewitt: Let's talk about the crime and the violence, mayor, in our remaining minutes. On Sunday, a private citizen who had volunteered to provide security at the Colorado Springs New Life Church stopped a maniac who had already killed four and wounded more. What does that episode tell us about guns and law abiding citizens? Giuliani: It tells us that we should keep guns out of the hands of criminals and that we should respect the rights of law abiding citizens to bear and carry arms and that if we can't respect it, we should at least respect the Constitution who gives them that right. Hewitt: Now Tom Brokaw was on this program with me last week and he had this to say about you and guns: Brokaw: And by the way, he's now down there appearing before the NRA. When he was here in New York he was arguing for gun control and he's done a 180 on it. Hewitt: Do you think he flip-flops on guns? Brokaw: Yeah! Hewitt: What about that, mayor? Giuliani: I believe that what I was doing as the Mayor of New York City was to reduce crime in New York. I had a terrible problem. I had 1,800 to 2,000 murders a year. I reduced shootings by 74%, homicides by 67%. I enforced the gun laws of New York City, I enforced the gun laws of New York very aggressively. I do not believe, however, that that would give me any right to ignore the Second Amendment. Hewitt: Were the gun laws, in your view, constitutional? Giulianai: I thought at the time they were. I think in light of the Parker decision I think that some of them would be seen as constitutional. Some there might be a question about. It's going to depend on how the Supreme Court decides this decision. The way I read it, and I agree with the Parker decision -- that wasn't the law at the time, there was no Parker decision when I was doing these things. It says that you can, it's an individual right, you can place limits, that the limits have to go to criminal background and mental instability. ---- If Rudy Giuliani once viewed the Second Amendment as a state or collective right, as opposed to an individual one, he was hardly alone. As constitutional law professors like Don Kates, Dan Polsby, Glenn Reynolds and others have mentioned, the Second was not even on the radar screen at elite law schools until about 20 years ago. By that time, Guiliani was out of law school and busy prosecuting the mob and Wall Street crooks -- same difference too often. Still many of the same questions persist in recent articles now that the Second is at the front of many minds. For instance, in the following piece, The controversial Second Amendment, historian Bruce Kauffmann mentions the confusion surrounding the term "militia" as used in the Second Amendment -- too often erroneously said to be The National Guard -- and the intent of the Amendment as understood by those who wrote it. It was clear to them, as Kauffman notes, but time and intentional politically instigated obfuscation have muddied the Second's language since the modern "gun control" movement started during the 1960s. -Dan "The National Guard is not the 'Militia' referred to in the Second Amendment ... When Congress and the people spoke of a 'Militia', they had reference to the traditional concept of the entire populace capable of bearing arms ... for defense against crime, foreign invasion and ruler tyranny." U.S. Senate Judiciary Committee Report on the Constitution, 1982 "The Second Amendment's first portion is simply a statement, a declaration, that 'a well regulated militia is necessary to the security of a free state.' Its corollary is that 'the right of the people to keep and bear arms shall not be infringed.' The prohibition is general. No clause in the Constitution could by rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint." William Rawle A View of the Constitution 125-6 (2nd edition, Philadelphia, 1803) This was the standard constitutional text at Harvard and other law schools until the 1870s. "The right to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." Joseph Story A Familiar Exposition of The Constitution of the United States, 1840 (Regnery Gateway) pp 319-320. Story was a U.S. Supreme Court Justice from 1811 until 1845 and a Harvard Law School professor. "THE RIGHT IS GENERAL...It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. If the right were limited to those enrolled [by the government in the militia], the purpose of this guarantee might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose." Thomas McIntyre Cooley The General Principles of Constitutional Law in the United States of America (1880) p 270-271. Cooley was a Michigan Supreme Court Justice and first dean of the University of Michigan College of Law. The controversial Second Amendment By Bruce Kauffmann [EMAIL PROTECTED] Writer-historian http://www.historylessons.net/brucepraise.html Longview News-Journal December 12, 2007 http://www.news-journal.com/news/content/features/stories/stories/2007/1 2/12/12122007_Kauffmann.html?cxtype=rss&cxsvc=7&cxcat=5 When the Bill of Rights was ratified this week (Dec. 15) in 1791, the Founders never dreamed that centuries later the Second Amendment would become so controversial. To them, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," was fairly straightforward language. How wrong they were, as evidenced by the Supreme Court's recent decision to rule on whether Washington, D.C.'s strict firearms law violates the Constitution, "a decision," The Washington Post wrote, "that will raise the politically and culturally divisive issue of gun control just in time for the 2008 elections." The main controversy is over the phrase "A well regulated militia," and its relationship to the statement "the people's right to keep and bear Arms, shall not be infringed." Gun-control advocates believe this language means that if you don't belong to a "regulated militia" your right to own a gun can be "infringed." Gun-rights advocates counter by noting that the amendment does not grant a right; it recognizes a right already granted. The amendment does not say, "The people have the right to keep and bear arms." It says, "the (already established) right of the people to keep and bear Arms, shall not be infringed." And they have a point. As even the Supreme Court has acknowledged, the right to own firearms precedes the Bill of Rights. Gun advocates also note that because the amendment gives the right to bear arms to the "people," not the states, claiming that this right is dependent on anything the states do or don't do - including forming militias - is ludicrous. After all, the Bill of Rights mentions no specific rights that the states possess, but several the people do. Two additional points: In 1791, most state militias did not give guns to militiamen when militias were formed. Militiamen brought their guns with them - from home. Indeed, the amendment says they can "keep" their firearms, not merely "bear" them during military service. Finally, (my hero) James Madison's original Second Amendment language was as follows: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." Written that way, he is saying that if the people don't have the right to arms, there can't be a militia. That Congress reversed the order does not change Madison's intent. Granted, all constitutional rights, including free speech and gun ownership, are subject to reasonable restrictions - you can't yell "Fire" in a crowded theater, and felons can't possess firearms. But the general right to own firearms is constitutionally protected. We will see what the Supreme Court thinks. ### _______________________________________________ To post, send message to Firearmsregprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
