The Second Amendment as an Expression of First Principles

I have the distinct privilege of introducing to you dr. Edward J Earl ER doctor earlier is a professor of political science at California State University San Bernardino and is a senior fellow of the Claremont Institute he earned his BA from San Jose State University and his MA and PhD in government from Claremont Graduate School he was a member of the California Advisory Commission on the Civil Rights from 1988 to 2006 served on the California constitutional revision Commission in 1996 and has testified before the House Judiciary Committee on the issue of birthright citizenship he is the author of the American polity and co-author of the founders on citizenship and immigration which dr. Bob just pointed out I had the privilege of hearing dr. Erler speak on the colorblindness of the Constitution last year at the Supreme Court CCA and it was extremely informative so again I had the distinct honor and privilege to introducing to you dr. Edward J earlier thank you for that nice introduction well today I think is a good day to talk about the Second Amendment especially after hearing the president last night and I think everyone knows that we were engaged in a rather frantic debate about rights of gun owners and I think one example should suffice to prove that we are indeed engaged in a hysterical debate about gun ownership one prominent but I believe less than articulate member of Congress alleges that supporters of gun rights have become enablers of mass murder to me that is hysterical and I think everyone knows that special animus has been directed at so-called assault rifles and I think you all know that these are not automatic weapons because they require a trigger pole for every round that is fired automatic weapons have been illegal in the United States since the 1930s some of these semi-automatic firearms can be fitted with large capacity magazines but what probably inspires the ire of gun control advocates is the menacing look of these weapons somehow they don't appear fit for polite society no a law-abiding citizen could possibly need such a weapon we are told they are designed for one purpose to kill human beings they surely are not designed for hunting how many rounds from a high-powered weapon do you need to kill a deer you've heard that many times and we are assured these weapons are not well at opted for self-defense only the military and the police needs such weapons senator Feinstein probably heard her as well confidently des claims that these weapons of mass destruction have no legitimate civilian use don't forget we had an assault gun ban for ten years and it had no appreciable impact on crime rates whatsoever now over the past two decades or so gun ownership has increased dramatically at the same time that crime rates have decreased the obvious lesson is that gun ownership is a deterrent to crime but the progressives of all stripes deny such a simple correlation most gun crimes are committed with stolen or illegally purchased or illegally obtained weapons what is the right formula to decrease crime I think it's very simple increase the number of responsible gun owners and prosecute to the greatest extent possible under the law those who commit gun related crimes or illegally possess weapons it's a very simple formula now one interesting fact about gun violence is that assault rifles are rarely used by criminals for one thing they're not easily portable nor are they easily concealed in Chicago you probably know this is the murder capital of the world excuse me of the United States and perhaps the world I've been to many dangerous places but I'm very reluctant to go to Chicago and you know they have draconian gun laws in that city but murders are rarely committed by assault rifles their pistols are the weapons of choice even for gang-related executions and probably some of you have heard the reports recently that it is safer to be deployed to a war zone in Afghanistan than it is to live in Chicago since we know that so-called assault rifles are not a significant factor in gun violence apart from rare and spectacular events does anyone doubt that the next target of progressive gun control will be the semi-automatic pistol the same arguments apply why would any homeowner need such a powerful weapon we are often told by experts that a gun in the home is more dangerous to the homeowner than to any intruder and some people are simple-minded enough to believe that not anyone I might add who has taken an NRA certified course in handgun use and by the way senator Feinstein to the contrary notwithstanding assault rifles are superb home defense weapons there is one assault rifle that is not on the proposed list of banned weapons the old m1 carbine of World War two vintage and Korean War vintage it's a 30 caliber semi-automatic short barreled rifle that hole that is capable of taking a high-capacity magazine my apologies President Obama is calling I hope there are no drones nearby this m1 carbine I believe is perfect for home defense to say nothing of the ar-15 223 caliber assault rifle which is similarly suitable for home defense especially with respect to a crime that has become becoming more and more popular with criminals and that's the home takeover robberies in crimes where several criminals rushed the the home or attacked the home simultaneously but of course we have this horrible spectacle of the mass shootings we are told that we have to keep assault weapons with high-capacity magazines out of the hands of people who are prone to commit such atrocities and the only way to do that is to ban these weapons entirely but who are these people the recent shootings Arizona Colorado and Newtown were perpetrated by mentally ill persons who by all accounts should have been incarcerated even the Los Angeles Times admits that there is a connection between mental illness and mass murder the LA Times but the same people the same progressives who advocate gun control also oppose the involuntary incarceration of mentally ill people who in the case of the recent mass shootings posed obvious dangers to society before they committed their horrendous acts of violence from the point of view of the progressives who opposed involuntary incarceration of the mentally ill and here you can thank the ACLU and like-minded organizations it is better to disarm the entire population than to incarcerate a few mentally ill persons who are prone to engage in violent crimes but we must not forget that each of these shooters was also in possession of semi-automatic pistols and I believe that the Arizona shooting of congressman Giffords only involved a semi-automatic pistol the same argument for banning assault rifles in order to keep them out of the hands of mentally ill or mentally unstable persons within by a parody of reasoning apply to semi-automatic pistols disarm the entire universe of law-abiding citizens who owned semi-automatic pistols said that none of these weapons will fall into the hands of the dangerously mental dangerously unstable does it make sense to deprive millions of law-abiding citizens of their constitutional freedoms so that a free there are a few suffering from dangerous mental illness can remain free such as the logic of those who inhabit the world of progressivism but we must be clear about one thing does the president might say let us be clear the Second Amendment is not about assault weapons it is not about hunting and it's not about sport shooting it is about something much more fundamental it reaches to the heart of fundamental constitutional principles it reaches to first principles one favorite refrain of thoughtful political writers during the founding era held that a frequent recurrence to first principles was an indispensable means of preserving free government and so it is let me first of all remind you of the text of the Second Amendment I think you all know it but it doesn't hurt to remind ourselves of the language of the Constitution 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 I think we all know the immediate impetus for this for the amendment and it has never ended this has never been in dispute many of the revolutionary generation believe that standing armies were dangerous to Liberty militias made up of citizen soldiers they reasoned were more suitable to the character of republican government expressing a widely held view Eldridge Jerry remarked in the debate over the first militia bill in 1789 whenever government means to invade the rights and liberties of the people he said they always attempt to destroy the militia now the Second Amendment is unique in that it that it contains its unique among the amendments in the Bill of Rights in that it contains a preface or a prologue announcing the reason that a right is protected let me paraphrase since militias are necessary for the security of a free State the right of the people to keep and bear arms may not be infringed now here we have to read the words free state as a reference not as a reference to the several states that make up the Union the frequent use of the phrase free state and the founding era makes it I think abundantly clear that the word state means here a non tyrannical a non despotic or perhaps even a non monarchical state now Justice Scalia wrote the majority opinion in District of Columbia versus Heller which was handed down in 2008 rightly remarked that the term free state and closed variations seemed to have been terms of art in the 18th century political discourse meaning a free country or a free polity and here the Justice Scalia was correct now the the principle constitutional debate leading up to the decision in Heller centered around the question of whether the right to keep and bear arms was an individual right or a collective right that is conditioned upon service in the militia as a general matter of course the idea of collective rights was unknown to the framers of the Constitution and it is this consideration alone that should have been decisive we have James Madison's own testimony that the provisions of the Bill of Rights as Madison said relate first of all to private rights and Madison did not indicate that the Second Amendment was an exception along with the other provisions of the Bill of Rights it was meant to protect individual private rights the notion that there there are collective rights is wholly I believe an invention of the administrative state and the founders of the administrative state the progressives were engaged in a self conscious effort to supplant the principles of limited government that we're inviting in the Constitution the progressives argued that what Madison and other founders called the rights of human nature were merely a delusion characteristic of the 18th century science they believed has proven that there is no permanent human nature there are only evolving social conditions or what we might call today social constructions for the progressives what the founders called nature or the rights of human nature are either the epiphenomena of the historical dialectic or simply self well willed delusions indeed the inherent the adherents of the administrative state came to regard the idea of individual rights as the enemy of collective welfare after all and the view of the progressives the welfare of the community should always take precedence over the rights of individuals the welfare of the people not liberty is the primary object of government and government should always be in the hands of experts this is the real origin of today's gun control hysteria professional police forces and military have rendered the armed citizen so we are told superfluous we don't need armed citizens when we have police and professional military no individuals should be responsible for his own defense or the defense of his family leave it to the experts the advent of the administrative state has rendered the idea of individual rights as well as the idea of individual responsibility unnecessary in fact incompatible with the progressive vision of the common welfare now this way of thinking was wholly alien to the founders for the founding generation government existed for the purpose of securing individual rights life liberty and the pursuit of happiness and it was always understood that a necessary component of every right was a correspondent individual responsibility Madison frequently stated that all just and free government derives from social compact all just and all free government derives from social compact that's James Madison and this is the very idea that is embodied in the Declaration of Independence which notes that the just powers of government are derived from the consent of the governed social compact to use Madison words contemplates a certain number of individuals as meeting and agreeing to form one political society in order that the rights the safety and the interests of each may be under the safeguard of the whole the compact madison duly notes must result from the free consent of every individual the rights to be protected by the political society are those natural rights that are the consequences of the first principles of human nature that all men are created equal these rights exist by nature they are not created by government although governments are necessary to secure them thus political society rightly understood understood as Madison understood it exist to secure the equal protection of the equal rights of all who consent to be governed this is the original understanding of what we know today as equal protection of the laws the equal protection of equal rights no each person who consents to become a member of civil society thus enjoys the equal protection of his own rights while at the same time incurring the obligation to protect the rights of his fellow citizens in this first instance then the people are a militia the first appearance of the people and the idea of social compact is the people are a militia formed for the mutual protection of equal rights this makes it impossible to mistake both the meaning and the vital importance of the Second Amendment the whole people are the militia and disarming the people dissolves their moral and political existence now we remember that the preamble to the Constitution stipulates that we the people do ordain and establish this constitution and it's important to understand here is that the Constitution doesn't create the people the people create the Constitution well when did we become a people I think that's simple when we adopted those first principles by which we were to govern ourselves the Declaration of Independence the Declaration of Independence mentions to the people in their political capacity we are one people and it mentions the people in their moral capacity we are a good people once we become a people then we establish the Constitution and Madison says there was a second contract between the people and the government the government is established to protect the safety and happiness of the people and the people delegate powers to the government to be used for the benefit of the people for their safety and happen powers are delegated to the government and the government can exercise only those powers and whatever powers are fairly implied from those specifically delegated powers the government is to be a limited government confined to the exercise of those delegated powers we also remember that the Declaration of Independence specifies that when government becomes destructive of the ends for which it is established again the safety and Happiness of the people then quoting the Declaration it is the right of the people to alter or to abolish it and to institute new government this is what has become known as the right of revolution and this is an essential ingredient of social compact and a right which is always reserved to the people the people can never cede or delegate this ultimate expression of sovereign power thus a very in a very important sense the right of revolution or even its threat is the right that guarantees every other right and if the people necessarily have the right of revolution as an indie feasible aspect of their sovereignty then by necessity the people have the right to the means to revolution only in armed people is a sovereign people and only in armed people is a free people the people are indeed a militia but we must remember that the Declaration includes an important Prudential lesson with respect to the to the right to alter or abolish government prudence the Declaration says will dictate the governments long established should not be changed for light and transient causes it is only after a long train of abuses and usurpations pursuing invariably the same object and that object evinces a design to reduce the people to absolute despotism it is their right it is their duty to throw off such government and to provide new guards for their future security now here the declaration identifies the right of revolution not only as a right of the people but as a duty and I might add it is the only duty that is mentioned in the Declaration of Independence but again the Prudential lessons of the Declaration are no less important than its assertion of natural rights the prospects of the dissolution of government or the prospect is almost too horrible to contemplate and must be approached with the utmost circumspection as long as the carts are operating free and fair elections are proceeding and the ordinary processes of government hold out the prospect that whatever momentary inconveniences or dislocations the people experience can be corrected then they should be tolerated these do not represent a long train of abuses and usurpations but we cannot remind ourselves too often of that oft repeated refrain of the founders rights and liberties are best secured when there is a frequent recurrence to first principles now in the District of Columbia versus Heller case which was again in 2008 the Supreme Court handed down a decision that for the first time held unambiguously that the Second Amendment guaranteed an individual right to keep and bear arms for the purposes of self-defense and in support of this opinion for the court Justice Scalia quoted Blackstone's commentaries on the common law of England or a work that was well known of course the founders Blackstone referred to the natural right of resistance and self-preservation which necessarily entailed he said the right of having and using arms for self-preservation and defense natural rights of course are possessed by individuals and one can easily see in Blackstone's language the rights of having and using arms a precursor to the Second Amendment which says the right of the people to keep and bear arms and throughout his majority opinion Justice Scalia rightly insisted that the Second Amendment recognized pre-existing rights rights that were not created by the Constitution nor in any way dependent upon the Constitution for their existence but Justice Scalia I believe was wrong to imply that the Second Amendment rights were codified from the common law as part of what he called our venerable liberties they were in fact natural rights deriving their status from what the Declaration of Independence called the law of nature laws of nature and nature's God now in his Heller dissent justice Stevens boldly asserted that there is no indication that the framers of the amendment intended to enshrine the common law right of self-defense in the Constitution and now I think in a perverse way justice Stevens was correct the framers did not enshrine the common law of self-defense they recognize the natural right of self-defense a right that is possessed by every individual as well as the people like the natural right to revolution the right to self-defense the right to self-preservation can never be ceded to government or given up in any way James Wilson who was a signer of the Declaration of Independence as well as a member of the Constitutional Convention and later a member of the Supreme Court made this statement the great natural law of self-preservation cannot be repealed or superseded or suspended by any human institution but justice Stevens nevertheless concluded that because there is no clause in the Constitution explicitly recognizing the common law right of self-defense it simply is not a constitutional right and therefore cannot authorize the individual possession of weapons of self-defense it's remarkable what justice Stevens apparently doesn't realize is that the Constitution as a whole is a recognition of the great natural law of self-preservation both for the people and for individuals whenever government is unwilling or unable to fulfill the ends for which of the exist the safety and happiness of the people the the right of action devolves upon the people whether it is the right of revolution or an individual right defense to defend person and property now Justice Scalia in his majority opinion in Heller noted that those who argued for the collective rights interpretation of the Second Amendment including justice Stevens in dissent have the impossible task of showing that the rights protected by the Second Amendment our collective rights whereas every other right protected by the Bill of Rights is an individual right why would the Second Amendment be an exception now it is true that the Second Amendment states that the people have the right to keep and bear arms other amendments refer to the rights of the people for example the Fourth Amendment the right of the people in the fourth amendment to be secure in their persons homes papers and effects against unreasonable searches and seizures but there seems to be universal agreement that the Fourth Amendment rights belong to individuals not to the people as an organic whole it is the individual who has a right to be free from unreasonable government intrusion similarly the ninth amendment refers to the rights retained by the people I believe this is also an obvious reference to individual rights but what about the First Amendment's protection of the rights of the people peaceably to assemble and to petition the government for a redress of grievances justice Stevens argued that these rights were in fact collective rights peaceable assembly and the right to petition collective rights after all he said they contemplate collective actions it is true the justices conceded that the right to assemble is an individual right but its concern is with action engaged in by members of a group rather than by any single individual at the right to petition government for redress of grievances is similarly he says a right that can be exercised by individuals even though it is primarily collective in nature its collective nature the Justice hoped helpfully explains means that if they are to be effective petitions must involve groups of individuals acting in concert even though individuals may petition government for a redress it is more effective and done in concert with others even though the Justice admitted concert is not a necessary is not necessary to the existence or the exercise of the right now with respect to assembly the Justice argues there cannot be an assembly of one an assembly is a collection of individual rights holders who can have who have United for common action or to promote a common cause but who could argue that the manner in which the assemblage takes place or that the form that it takes significantly qualifies or limits the possession or exercise of the right we might as well argue that freedom of speech is a collective right because freedom of speech is most effectively exercised when there is an audit an audience or when there are auditors of some kind or another or that freedom of press is a collective right because it's most effectively exercised when there are readers I can only conclude that justice Stevens's argument is fanciful not to say frivolous the argument for collective rights fails now justice Stevens also says that they preamble to the Second Amendment identifies the preservation of the militia as the amendments purpose preservation of the militia he would thus impose on the imposter this impossible rendering upon the plain text of the amendment here's the way he would read the Second Amendment well-regulated militias being necessary to the security of the freedom of the several states the right of the members of the militia into several states to keep and bear Arms shall not be infringed but I don't think the Amendment says that or anything close to that in order to reach this conclusion justice Stevens has to make in I think a wholly incredible argument that the right to keep and bear arms refers not indeed to to rights but only to one listen to this the people have the right to keep arms only when they are actually bearing arms try to follow me here not my argument and the people can only bear arms while in militia service if these were to rights the right to keep arms in the right to bear arms then these the right to keep arms might be interpreted to be at private right even as the right to bear arms would be a collective right reduce the to rights to a single right and you have one collective right that can be exercised only while serving in a militia I think this argument is either frivolous or worse now justice Stevens's contention also ignores the argument that was prevailed at the founding that the first appearance of the people the whole people is in its capacity as a militia dedicated to the equal protection of equal rights justice Stevens's view would allow government regulation in effect to create special militias a subset of the people who have the right to keep arms only when they bear arms the second amendment however sought to prevent the danger to Liberty that would be posed by such special militias by properly defining the whole people as the militia now Madison knew as well as Blackstone how the Stuart Kings had used special militias to suppress Liberty particularly religious liberty and a large part of Madison's purpose was to prevent the formation of special militias by emphatically defining the whole people as the militia because a militia is necessary to the security of a free State the people shall not be disarmed the court however in the Heller decision did indicate that there could be some reasonable restrictions on gun ownership Justice Scalia wrote that long-standing prohibitions on the possession of firearms by felons and the mentally ill will continue to meet constitutional muster laws that forbid carrying firearms in sensitive places such as schools and government buildings are also reasonable regulations as our conditions and qualifications on the commercial sale of arms the prohibition on dangerous and unusual weapons including automatic firearms fall outside the Second Amendment guarantee as well but the Heller decision is clear that handgun possession for self-defense is absolutely protected by the Second Amendment can handguns be carried outside the home is part of the inherent right of self-defense clearly the court indicated that handguns can be prohibited in sensitive places but what about places that don't have the same sensitivity as schools and government buildings surely not every place outside the home is a sensitive area and if carrying weapons in a non sensitive areas protected by the Second Amendment can there be restrictions on concealed carrying these are all questions that will have to be worked out in the future if not by legislation than by extensive litigation and the Supreme Court took a further important step in securing Second Amendment rights in McDonald vs Chicago case that was handed down in 2010 here the court ruled that the second Second Amendment rights as articulated in the Heller case were fundamental rights and thus binding on the states through the Due Process Clause of the Fourteenth Amendment but here I think Justice Thomas in his concurring opinion had a better argument when he said that the framers of the 14th amendment included intended to include all substantive rights including Second Amendment rights to be cain't contained in the privileges or immunities Clause of the Fourteenth Amendment and I think his opinion had a more accurate reading of the historical record then the four members have made up the mid for other members have made up the majority of the court but apparently the court has invested too much effort in its substantive substantive due process jurisprudence as changes month to change its mind at this late date now but we must always keep in our mind that these two important decisions in Heller and McDonald were five to four decisions very close decisions new appointments of more should we say more progressive minded judges to the court could easily bring about a reversal for the moment the Second Amendment rights seemed safe but in the long term a political defense will be a more effective strategy for those who want to defend Second Amendment rights I think in the current climate of public opinion Congress will probably have a very little appetite to pass for passing an assault gun ban more likely Congress will be satisfied with passing legislation aimed at gun trafficking or perhaps tightening laws about background checks but we must remember that President Obama is famous for saying if Congress won't act then I will he has already issued at my last count at least 23 executive orders some of them tightening background checks others asking various executive agencies to launch gun safety programs directing all relevant executive departments to maximize efforts to prevent gun violence and prosecute gun related crimes and so on this all seems to be fairly straightforward other executive orders are rather curious one notes that there is nothing in the Affordable Care Act that prevents doctors from asking patients about guns in the home and other directs the Centers for Disease Control to researching the cause and prevention of gun violence now there is no doubt that the president's power to act through executive orders is as extensive as it is ill-defined Congress routinely delegates power to the executive branch and its agencies and courts accord great deference to agency rulemaking powers often interpreting an ambiguous legislative language or even legislative silence as a delegation of power to the executive branch now delegation of course provokes fundamental questions of separation of powers and even the rule of law but many have argued that extensive delegation of legislative power to the executive branch is the price that we have to pay for the modern administrative state separation of powers and the rule of law is understood by the framers we are has been rendered superfluous by the development of the modern state some of the boldest supporters confidently tell us that the triumph of the administrative state has propelled us into a post constitutional era where the Constitution no longer matters I'm sure some of you have already gotten that feeling yourselves the president already has the power under the Gun Control Act of 1968 some of you may remember that piece of legislation he already has the power to ban the importation of assault rifles the Act gives the president the discretion to ban guns he doomed deems not suitable for sporting purposes would the president be bold enough perhaps even reckless enough to issue an executive order banning the domestic manufacture and sale of assault rifles perhaps he could argue that these weapons have no possible civilian use and should be restricted to the military and that he his power as commander-in-chief authorizes of him to act or perhaps sometime in the near future the president will receive a report from the Centers for Disease Control that gun violence has become a national health epidemic with a recommendation that the president declare a national health emergency the president by executive order may then order the confiscation of all assault weapons Congress surely could pass legislation to defeat the executive order but could a divided Congress muster the votes and in any case the president would veto the legislation surely we would have resort to the courts but as of yet we have no ruling that assault weapons are not one of the exceptions that can be banned or regulated under the hell decision we could make the case that assault rifles are useful for self-defense in the hotend home defense but could we make the case that they are essential would the courts hold that the government had to demonstrate a compelling interests for the ban on assault rifles as it almost certainly would have to do if handguns were at issue all of these questions presuppose that the Heller decision is still standing which it may not be are these simply wild speculations on my part perhaps probably but they are part of the duty we have as citizens to engage in a frequent recurrence to first principles and I thank you for listening so I can take some questions if anybody's interested I think you have to take a microphone so I recorded all of this for posterity or until tomorrow morning whichever comes first Stewart Reuter your discussion of the writer revolt revolution revolution raises the question of the legality of the Confederate States of America see session now one that one interesting point I received a question like this all the time one of the interesting things that the South never did or the Confederate states never they never justified the secession on the basis of the right of revolution why because that is a natural right argument in which case they would have had to somehow distinguish or argue around the fact that on the basis of natural rights their slaves had a natural right to freedom and so they knew better than to make a natural right argument for revolution as being the basis of their secession so they never argued that yes okay well sorry can we go back to the preamble for the Second Amendment and and make make sure I understand your position it sound quiet for said is that Yambol doesn't inform or constrain or otherwise affect the the subsequent language of the Second Amendment is that the case the amendment be the same have the same meaning without difficult to say but I think that that it is unique in the sense that is the only amendment that has a preamble or a preparatory statement there the people have the the people how would it read without the preamble to it the the people have the right to keep and bear arms well I think that it would have the same meaning perhaps we've been confused by the preparatory remark because that we're not prone to extra rewards but I think Madison wanted to make it clear I mean they were really important about this idea that militias were important and that I really do want to emphasize the idea that if Madison said and he repeated this is an article a long time ago when I was a young professor you know you have to have a lot of footnotes in your in your writings and so I counted up every time that Madison said or made the statement that all free government and all just government proceeds from social compact there was many many times so it's just something that he said frequently and we have to take it seriously so that means that we we all a consent to be governed and we all agree to protect one another's rights at the same time that our rights are being protected and this means that the people in this first compact that is made are in effect a militia that's how we become a people is by becoming a militia pledged one to another to protect one another's rights and so this is what Madison had in mind now Congress has the power under the Constitution to determine the kind of training for militias and so on and so forth so a well-regulated militia and the first militia acts defined the militia as everyone between the ages of I forget 18 and 45 or everyone who has the capacity to serve in the militia and so on and so forth so in essence the people are a militia and they have and no one who is unwilling to serve in the militia or to protect the rights of other persons has any right to be become a part of the body politic we can if we want to we are not obliged to but we can if we want to grant conscientious exemptions for people because of religion and so on and so forth but there is no requirement that we do so based upon this idea of social compact that Madison said was it the foundation of all just and free government yeah yes um um senator Feinstein's um dan things that's a little different as I understand from the 1994 ban is that owners while their grandfather did they have own assault weapons they're not allowed to either resell those weapons or hand them down to their heirs that's great if that means to me that they are not allowed to recover their investment in that property in that weapon and isn't that a violation of the Fifth Amendment's no person shall be deprived of life liberty or property without due process or the takings clause yeah you could look at it that way but of course no one if you have owned something that is illegal then of course you have no right to you know no one has a right to inherit that property in any case so the idea would be whether the government can by legislation ban assault weapons or not if it's legal to abandon you know to ban assault weapons then of course the idea of them being inherited and so on and so forth would follow in the wake of that decision as well but that's just that's just legislation if if I have a grandfather in California no we have some pretty strict laws in California I have actually I I should have mentioned the m1 carbine but I it'll probably be on the list tomorrow and you know I hope I didn't make a mistake there but I have grandfathered weapons but that's by legislation in California and there is a proposal in California to to stop grandfathering weapons that are already owned and that's would be perfectly legal under the California Constitution you could look at it that way if they if the California legislators I want to take the political heat for it and then they could do that I knew we would of course get a legal case right away and try to force the you know the courts to decide otherwise but who knows what the decisions would be so how do you see the role of the local sheriff in the defense of the Second Amendment well it's been interesting there's been a lot of rumbling around the country some sheriff's say they won't enforce the assault gun ban some sheriffs are saying to people that you should arm yourselves don't depend upon the police anymore and I I think that these are probably not good things for sheriffs to be saying but I admire that kind of spirit in the country and I'm glad to see that that kind of spirit in the country is still alive and people are willing to say those kinds of things but if it's a federal law and you know we have the Supremacy Clause in the Constitution then we have to obey the law can we count it as one of those pieces of usurpations that pursuing invariably the same end to reduce the people to absolute despotism maybe but you know this is gonna be a difficult thing some sheriff's and police departments are welcoming this ban and some sheriffs and police are saying the people should arm themselves I think sheriffs and you know police chiefs are political people and they're most likely to be on the side of disarming the people but I can tell you that your ordinary policeman knows that an armed homeowner helps the police and I think into any policeman will tell you not any policeman but most policemen will tell you something like that and it really is true that an armed citizenry that's what reduces crime I mean look at Chicago I mean how can you argue against that and it's not assault weapons that are causing all the violence in Chicago I guarantee you that can you say a few words about where in the Constitution there's a basis for the ban on exotic or powerful weapons does the Constitution say we can't have nuclear weapons well when the court in the DC case says you know unusual or dangerous weapons I think that this is a reasonable thing look we the Constitution says Congress shall make no law respecting an establishment of religion or you know interfering in the free exercise of religion but if you have a religion that requires you to to make human sacrifices I think it's reasonable to say that you can believe in human sacrifice you just can't do it or that freedom of speech doesn't allow you to libel or slander because civil society you know libel is a way of taking a person's property because your reputation is your property so libel is taking a person's property without due process of law so we have these reasonable restrictions and regulations automatic weapons we could have an argument about that whether or not they are dangerous or unusual weapons probably you know I have many many years ago a military experience and and my weapon when I was in the Army was an m60 machine gun I loved that weapon and I wish I had one now but I don't think that every armed citizen should have an m60 machine gun there you know I have to have a lot of training to fire them and to handle them properly and so on and so forth should everyone have a grenade launcher I don't think so probably not flame thrower probably not you an Abrams tank probably not although I wish I had one of those too but make driving on the freeway in California a lot easier but but so we can have an argument about reasonable restrictions for gun ownership I do not think that assault rifles and I hate to use that term but it's in common parlance now but assault rifles I do not think are the weapons that that should be should be banned or restricted I mean when people say they're no good for any kind of civilian use that's simply not true get yourself an m1 carbine and ten and get back to me and tell me that that thing is not useful it is well but but that's the way at all yeah it that but that's the way no you're you're right that but that's the way it always is we have to make judgments about these things what kind of speech should be allowed you know clear and present danger this is a standard for speech we're going to allow people to you know falsely yell fire in a crowded theater that's the example that's always used of course we can restrict that speech but the First Amendment says Congress shall make no law but we can't have people saying you know anything they want to at any time in any place and so on so time place and manner restrictions upon speech those are reasonable regulations and so everything can be subjected to that and of course we have to make judgments we have to make decisions about things that's why we have legislators who were supposed to deliberate about things they don't often deliberate very well we have courts that are supposed to deliberate look how long it - I didn't think that I would live long enough to see a Supreme Court decision saying that second Amendment rights were individual rights you know I actually prayed for for that for years and years and years and then we finally got it in 2008 I never thought we would see it I don't know how many years it's going to that decision is going to stand but you know we finally got it so that was significant progress but so now we have to make a decision somebody's going to come along and I think if senator Feinstein gets her way on assault rifles somebody's going to come along and say well wait a minute the Supreme Court case said and Heller said that handguns are the weapons of choice for the homeowner does that mean a semi-automatic handgun you know who needs a 45 semi-automatic pistol I mean that's a powerful weapon the homeowner doesn't need that I mean why can't we go back to black-powder pistols or something like that and so you know we've got to make decisions and and that's what we have to do always and so free exercise of religion we can't let people do whatever they want to and the Supreme Court said in the case in I think was around 1880 if we allowed a free exercise exemption based upon everybody's view of what was proper to his religion everyone could become a law unto himself because you could say my religion doesn't allow me to obey that law so everyone could become a law unto himself so we have to have all kinds of regulations and reasonable restrictions upon what can be allowed under the guise of free exercise of religion no cannibalism no human sacrifice and so on and so forth so and I suspect the same thing is is of truth gun ownership as well and so we'll have all kinds of arguments I think we ought to draw the line on assault assault rifles we have to stop calling them assault rifles for one thing but we ought to draw the line there I don't think that they should be banned although I I'm not too concerned about people owning automatic weapons or mortars I'd like to have a mortar - okay thanks

Channel: Hillsdale College

Views: 13,106

Rating: 4.9102564 out of 5

Keywords: Kirby Center, Hillsdale College, Liberty, Edward Erler, CSU, First Principles, Second Amendment

Id: 74FQNLeLt2w

Length: 62min 44sec (3764 seconds)

Published: Fri Feb 15 2013