December 9, 2011

Gunfight.

At the Volokh corral.

13 comments:

traditionalguy said...

"A Gunfight"...That is very funny.

Carnifex said...

Looks like Voloch would be a tough grader. Good on him.

Richard Dolan said...

Ha. Nothing in academia is what it seems at first glance, This may be a "gunfight" but only in the Hollywood sense -- no real substance and no one gets hurt. Volokh points out that an article in the NYU Law Review (a prestigious venue for that sort of thing) was a bit over-written in some of its historical claims; the author responds that he should have been more careful with his phrasing, that his footnotes made the limits about what he was really saying (more or less) clear; and agrees with Volokh that he has no historical evidence for the 'strong' thesis Volokh attributes to his piece but which he disavows. Along the way, the author falls all over himself gushing about how Volokh was such a generous and wonderful scholar and mentor, and on and on.

Gunfights don't ususally end in a love-in quite like this one does. But it's useful to keep in mind that it is all taking place in the lovely groves of American academe, a fairy tale never-never land if ever there was one.

sorepaw said...
This comment has been removed by the author.
edutcher said...

From what Volokh says, it tends to indicate that the Ninth Amendment is the font of our right to firearms.

Bruce Hayden said...

First, Eugene Volokh is, among other things, gracious. I met him in the mid 90s at cyber law conferences put on by Mark Lemley (now at Stanford) in Austin. EV and I participated in a Cyberia-L list, and after some immoderate comments by me, he gently chided me for such. I followed his .sig back to his fairly new blog, and discovered blogging.

But, I do see this as a slap down. Back over at volokh.com David Kopel, another gun history/rights attorney/conspirator has blogged, and gun rights historian Clayton Cramer has commented.

The authors' thesis seems to be that in colonial and early US times gun ownership was often seriously limited based on race, sex, class, religion, money, etc. The religion turns out to be somewhat correct - Roman Catholics had their gun rights revoked for a couple of years during the French and Indian war in a couple of colonies, so that they wouldn't side with the Popish Tyrant (i.e. the French). Somewhat akin to locking up the Japanese during WWII, except not as bad.

But, the author seems to have made a number of basic mistakes (at least that is the feeling so early). For example, they confuse militia service with owning guns. Men alone belonged to the militia, and had to keep a gun for that reason. If they couldn't afford one, they were often provided one. But that doesn't mean that women couldn't keep or own guns. And, most often slaves didn't own guns, and if they did, it was by permission of their owners. No surprise there.

What it looks like is that the authors tried to jump from weak data to unwarranted, politically expedient and correct, conclusions concerning early gun ownership in this country, and are being brought up short.

Don't Tread 2012 said...

My wife is barred from using my guns.

She makes up for this house restriction by liberally (!) using credit cards.

Same outcome, different method.

traditionalguy said...

For 30 yearsfighting over gun rights ( A Gunfight) has been done in Academia by a strategic attempt to re-write by re-interpretation the Second amendment.

The ideais that says the guys in the 1776 through 1789 years really did not want what they wrote down; and if they did, then it was Un-constitutional because used un-equal treatment of women and slaves.

It is like the Global Warming caused by Dirty carbon trace gas fraud...it is 100% a fraud written in assertive intellectual BS.

Interestingly enough the 13 and 14 amendment writers were especially determined to extend gun rights to former black slaves. Thaddeus Stephens was no fool.

Canuck said...

"But that doesn't mean that women couldn't keep or own guns. And, most often slaves didn't own guns, and if they did, it was by permission of their owners. No surprise there."

no surprise - fears of slave rebellion. And black codes after the Civil War attempted to criminalize the possession of guns by African American men.

Married women could not own guns in the earlier time period due to the common laws about property and marriage. Her husband would have legally owned the musket. It was a movable item.

Big Mike said...

I think this matter has to clarified for once and for all with a Constitutional amendment to the effect that people have an inalienable right to self-defense.

If we have a right to self-defense then we have a right to own the means to protect ourselves, namely firearms.

It's really as simple as that.

David-2 said...

Richard: "Gunfights don't ususally end in a love-in quite like this one does."

Your comment made me think of this Hollywood "gunfight" - Are you gonna do something or just stand there and bleed? - especially the second half when Johnny Tyler comes back with the shotgun ...

Synova said...

If that's a gunfight I can only say that Heinlein was right. An armed society is a polite society.

Mick said...

Big Mike said...
"I think this matter has to clarified for once and for all with a Constitutional amendment to the effect that people have an inalienable right to self-defense.

If we have a right to self-defense then we have a right to own the means to protect ourselves, namely firearms.

It's really as simple as that."




DING DING DING!!! Give the man a cigar! The Bill of rights are NATURAL LAW RIGHTS, i.e "Laws of Nature and Nature's God", i.e law of nations. When looked at through that lens the efficiency and common sense of the US Constitution is illuminated.

The author of the Thesis is obviously attempting to make a case for the restriction of gun ownership by unsubstanciated claims of "prejudice" in the original laws of gun ownership w/in the states. He is attempting to make that claim via a faux originalist argument w/ no sources. It is a typical way that the Left makes a Relativist argument. It is not unlike the "separation of church and state" nonsense vs. the real meaning of the establishment clause.

The Right to defend oneself IS the 2nd Amendment. The Right to defend oneself extends to defending your home, your state, your country . That's the way Natural Law works, by extending the rights and patterns of interpersonal relationships outward to the relationship between nations. That is the theory of "the persuit of happiness"-- that that natural persuit, when allowed to blossum unrestricted will result in the happiness of the Citizenry as a whole, since one persons happiness is amplified by the persuit of hapiness of others. Of course that pursuit of happiness is not unrestricted and must conform to some positive laws which do not restrict personal natural law rights-- that's the US Constitution in a nutshell. It is not some arcane document understood only by Lawyers. It is written to be understood by all the citizenry.

The FACT that natural law is the basis of our political compact is often forgotten by "law profs" and such, in their self important belief that stare decisis, and British Common Law--- i.e "positive law" is more important. Stare decisis does not apply to decisions that are against the law of the US Constitution-- see Marbury v. Madison. Do you really think that the founders of this nation broke from the British yoke only to immitate their dictatorial law of subjication?

The Declaration of Independence is proof of what the US Constitution is all about. Read it sometime, then read it again. Let the words "Laws of Nature and Natures God" sink in. What do you think A1S8C10 means?--- it is the extention of natural law (law of nations)outward to international relations.

Law of Nations (natural law) is embedded in the the US Constitution. British Common Law is not. Why do you think Scalia cited law of nations in Heller? Why do you think T. Jefferson's textbook at the U Va. was "Law of Nations". Why do you think that long overdue library book, recently found, was checked out by G. Washington, and often seen open on his desk?
http://theweek.com/article/index/203282/george-washingtons-221-year-overdue-library-book-a-timeline

Maybe you should teach about law of nations professor. The students you turn out would have a much better understanding of the US Constitution.