Friday, September 23, 2016

Noah Feldman Defends First Amendment Support for Second Amendment

Noah Feldman is a Harvard law professor and a prolific author.

On 17 May, 2016, Noah Feldman somewhat grudgingly, but honestly, explained why Second Amendment supporters keep winning in the courts.  I wrote about it a few days later:

In the Post and Courier article, Feldman is having an difficult time explaining why the Second Amendment should *not* be a fundamental right.  From the  

With that, the court embraced the old slogan that if you outlaw gun ownership, only criminals will have guns. The court then held that the regulation wasn’t narrowly tailored because the city would have to prove that its scheme made people safer than any less restrictive alternative. And it said it was “skeptical” that such proof could ever be possible. The regulation would only be narrowly tailored, he said, if it were “targeted at keeping guns away from people who are likely to misuse them or situations where they are likely to be misused.”
  Then Feldman writes this bombshell statement, for a person on the left:
City lawyers tried to argue that the regulation simply restricted the time, place and manner of bearing arms, limitations that are permissible even when applied to the free-speech protections of the First Amendment. But the court replied that the analogy was flawed — which of course it is. A law that prohibited you from speaking while on the street but let me speak while at home wouldn’t be permissible. The analogy to free speech is one that belongs to advocates of gun rights, not to the other side.

The U.S. Court of Appeals for the D.C. Circuit will have to review this decision. But it’s worth noting that, astonishing as the reasoning sounds, it makes logical legal sense once the right to bear arms is treated as a fundamental right comparable to free speech.
Noah Feldman has written another article, explaining why the courts should protect the publication of plans to build common weapons under the First Amendment.  From
Although the impulse to block the easy creation of untraceable weapons is admirable, the court got it wrong. The First Amendment can’t tolerate a prohibition on publishing unclassified information – even if the information is potentially harmful.
I admire Feldman's willingness to apply logic to the subject at hand, even though he dislikes the outcome.  You do not see that very often in the fight over the Second Amendment.  Feldman's logic is impeccable.
What’s more, Congress in its wisdom hasn’t prohibited Americans from making their own AR-15 parts at home. The fact that the conduct is legal is an overwhelming reason to conclude that directions on how to do it can’t be prohibited without violating freedom of speech.

Judge Edith Jones said as much in dissent. I don’t agree with Jones, a Ronald Reagan appointee, that often, but when you’re right, you’re right. She pointed out that the panel never squarely addressed the question of Defense Distributed’s likelihood of success on the merits in upcoming litigation.

When free-speech rights are in the balance, a long delay in publication is as good as the denial of the First Amendment. Defense Distributed has already been prohibited from speaking for three years.
I disagree with Noah Feldman a fair amount.  He has written, for example, that the interpretation of the Second Amendment as an individual right started with the Heller case in 2008.  That is not correct. But writing about the First Amendment, and the implications in this case, he is right.  As he says: when you are right, you are right.

Hats off to Noah Feldman.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Anonymous said...

I have tried to point out the bombshell Scalia wrote in Heller, which mushroomed when McDonald came to pass as a matter of natural course. The 6 words Scalia slipped in there amounted to a nuclear detonation of modern day gun control - because - it pitted the Doctrine of Selective Incorporation directly at itself!
Either the court would have to admit the whole thing is a ruse - or - admit that what Scalia wrote was true - "The Second Amendment is no different.".

That makes Ivy Mike look like a black cat fireacracker in comparison.
Either the Second receives the same structural protection, ont he same terms as the First, or nonsensical contradiction exists openly, contradiction that would call into question the judiciary's own self proclaimed interpretation authority.

We witnessed a HUGE turnaround in Caetona- especialy from "nunchucks are not protected" wise latina and even Ginsburg!! in that unanimous vote because when they had to choose between authority of the court and gun control, well, lets just say the Democrats pet project got tossed out like yesterday's scrap meat cuttings.

Refusal now to adhere to precedent pertaining to the Second would endanger the entire First Amendment case law structure within Incorporation. There is no way out - no way out at all - besides just admitting that what Scalia wrote is in fact true! And that is exactly what the judiciary is doing and will do from here on out.

So then - the serious question that we as gun rights advocates MUST put to the grindstone is -"If we the people can be subjected to qualifications testing and permission slips, er, permits, for carrying a gun, can we then also be commanded to obtain the same level of scrutiny and permission slip factor to carry a Bible, a pencil, a laptop or even a piece of paper?

Obviously, even to the most dedicated gun controller, they would have to answer that the First Amendment blocks government from making and enforcing such a thing, and through the 14th amendment in the specific. Ahem. Seeing as how Scalia was so direct, and ummmm that the majority agreed, well, guess what? There is no choice but to admit that we cannot be compelled to get permission slips for carrying arms EITHER. What is good for the goose is good or the gander. And it is already past time for the progressive liberals to ACCEPT this profound set of facts - and to drop their pathetic goal of snatching guns from us and relegating us to begging for permission slips.

Hey NRA - are you fools listening? Can you hear me now? How does that saying go? Oh yeah, It is time to poop or get off the pot.

Anonymous said...

"The first amendment guarantees .. the right to bear a machine gun ... If you got a gun in your hand, you're free to make any speech you want to."

- 'Archie Bunker' (character portrayed by John Carroll O'Connor, American actor, producer and director whose TV career spanned 4 decades), "All In The Family", TV, 1976 [abridged]

Anonymous said...

The previous poster has pointed out my issues with the NRA very well. The NRA has for decades refused to address the basic facts, ingrained in the constitution. The constitution was written to create a government, it was also written to limit that government it created. It is a fact by the written words of the constitution. You have to actually read and understand the constitution to see how government has increased its power and authority in direct violation of the constitutional mandates. Government is not permitted to increase its power and authority. It has been doing just that since it was formed. You must understand the definition of what a judge is. the term judge limits a judicial officer / judge to enforce only the words written in the law. the term judge does not permit a judicial officer to interpret the law. judges are to judge on the fact presented according to the written law they are not permitted to create scenarios of possibility. They are forbidden to inject their opinions or any kind bias. to interpret is just that opinion and or bias. The fact is the court in its attempts to increase its own power actually ruled in the Marbury v Madison case (1803) that it had the authority to interpret without any constitutional authority written to do so and in fact the definition of Judge forbids it. Read your history. Before the American government was created by the constitution the high court was staffed with the kings magistrates. they had the kings authority to do any thing they pleased and this fact is a part of what caused the revolutionary war. The problem arose when those magistrates took jobs as judges and wanted their power and authority back that the constitution had stripped from them. so every chance that came up the court would make rulings that took back a little bit at a time. At the time the country was still very young communication was extremely slow and difficult for comparison to today. You could use the phrase they got away with murder. The sad thing is those early rulings have set precedent Although constitutional law does not allow such precedent to exist. Now even lawyers say what do you mean the court has no authority to interpret. the only answer is the constitution does not permit JUDGES to interpret. they are no longer the kings magistrates they are judges. they can not substitute words change words leave words out or ad words to any law. they can not consider any other countries laws that may cloud their ruling for any reason. That is what happened with a Judge in recent years. she used a French law stating she liked its wording better than the American law. she retired before she could be impeached. Judge O'Connor. they only have jurisdiction over American law. I actually had a judge say to me in open court " I do not care what the law says or requires me to do , this is my court and I will do as I see fit". Later she had those remarks striped from the transcript. the failure of the supreme court has destroyed

the lower courts. There is not a court in this country that has any honor or integrity. I have demanded that my name be removed from the jury pool because I know personally how corrupt the courts have become. I would love to serve on a jury but I refuse to lower my standards and support the flagrant corruption. Knowing how corrupt the courts are I could only vote not guilty. Mark Furman is an example of how corrupt the law enforcement agencies are. It was proven he tampered with evidence to get a conviction. He lost and was exposed. the sad fact is this sort of thing goes on all the time. bias and opinion have no place in law. The NRA refuse to get the issue settled once and for all. They back what they consider good laws when no laws should exist. Shall Not Be Infringed is an absolute command.

Anonymous said...

Sorry to say, for those that disagree with my view points on issues, and personally proud to say I am a died in the wool constitutionalist. Look at What has been done by the courts to the fourth amendment A constitutional guarantee of personal privacy. warrants are only permitted to be issued for specific reasons. it is the duty of the law enforcers to gather evidence to convict you. you are in no way required to help by self incrimination. You are to be secure in your own home your personal papers and documents are yours and yours alone and protected by your right to privacy. Many people store their documents in their computers. law enforcement collects computers all the time. government computers are a completely different issue. Your wife can not be required to testify against you Law enforcement must prove their case on evidence they collect but they can not take it out of your home. that is equal to forcing your wife to testify. Law enforcement can enter your home to make an arrest with a warrant but they can not touch anything else. This concept goes back a long way. It is better to let a thousand guilty go free than to convict one innocent man. If you broke God's law you are not getting away with anything. Most of the framers were very religious men. Our rights are inalienable. that means they come from God and existed before the constitution or the bill of rights. the constitution gives you no rights, the constitution tells government what those right are and they can not be infringed. DNA can only come from one person, You. if that is not testifying against your self what is. just because the technology exists does not mean it can be used. I told you I am a strict constitutionalist. Thou shall not kill is supposed to be thou shall not commit murder. god allows killing in self defense. In fact if you die saving the life of another and having to kill to do it that is a ticket to heaven. Jesus died for us. that is why soldiers that are required to kill are forgiven. You defend your religion by defending your country and the citizens that depend on you.

Anonymous said...

The first poster on this topic states nun chucks are not protected. May I remind everyone that there is no definition of what arms are in the second amendment. I ask why are nun chucks not protected as defensive weapons? There are so many kinds of things that can be used as weapons so who gets to choose and pick what any one uses. I have nun chucks, stars, throwing knives, cross bows, long bows, a sword, sever machetes, shotguns, rifles, pistols, sever different sizes of hunting knives, several hatchets, base ball bats, iron bars, bolos, chains, belts, and a fairly good knowledge of explosives. I think anything you happen to need to use at any specific time is what you use for self defense. I may even use a beer mug if necessary or a kitchen carving knife. Or my ex wife's cooking Hit anyone in the head with one of her chocolate chip cookies and they are done for. Hell you can kill with a ball point pen. Who worries about being properly armed in an emergency Pick a brick that fits your hand. the intent may have been for conventional types of arms but with out a definition anything fits and shall not be infringed is what is written. I draw the line at throwing my ex wife at anyone that would be cruel and unusual torture. I can just see it now, go or my going to get a license for my carpenters hammer. box cutter and awl. a welders chipping hammer could be an effective weapon. Every cars tire iron, or screw driver and a crow bar. Maybe we can even be forced to get a permit for a 2x4 board How about my bull whip, ever been opened up with a bull whip? You just can not limit what can be used for self defense. frankly I'm tool poor. I think classifying my compound miter saw as a weapon might be going to far. Its new I hope I never have to throw it at anyone. but if I had to I would. circular saw blades make very dangerous weapons. the word infringe encompasses anything and everything that is why it was used by the framers.

JoeThePimpernel said...

The nine other amendments in the Bill of Rights represent individual rights.

Why would the founders throw a collective right into the middle?

That was a rhetorical question.