We could certainly arrest and convict far more criminals — thus saving many more innocent lives and protecting against crime, if we were willing to ignore and violate the right to an attorney — merely NOT TELLING the suspect certainly doesn’t violate any rights from a purely literal point of view, nor is there any direct Constitutional requirement for the government to SUPPLY an attorney.

But Miranda sets up the warning, and the actual provisioning of the attorney for the suspect and we choose to do this in an abundance of caution to avoid mistreating innocent (and guilty?) people.

Taking the Right to Keep and Bear Arms (arguably both the oldest AND the most important* right) in a futile attempt as public safety is far worse. It is worse because it infringes the rights of ALL the law abiding due to the bad behavior of some few criminals.

* The Right to Keep and Bear Arms is arguably the most important since it is the one that protects all the others. No right has EVER been secured without people of good will, willing to take up arms, secure that right, and share that right with others.

My take? David Kairys was off the mark in several instances, including:

1) David’s prediction of the “huge scope” of an individual rights ruling came across as “alarmist” and perhaps somewhat insincere.

2) David’s numerous references to this case creating a “new right” wholly assumes there was no such right to begin with. He’s flatly wrong there. The founders did not create any “new right”, nor would the SCOTUS if they ruled individual right in DC v. Heller. The right to arms demonstrably stems from an inalienable common-law right to defense…that was even outlined in the English bill of rights in the late 17th century. So David’s mention of some “new right” suggests that he is either uninformed or dishonest.

3) As DC did so disingenuously in their cert petition, David couches and contexts this issue in terms of public safety. In so doing, he fatally assumes that gun control legislation necessarily enhances public safety.

4) He even takes a stab at the so-called “gun show loophole” (private firearm transfers) by stating that such transfers are directly responsible for criminals getting guns, AND as if laws requiring background checks for private transfers would somehow cause otherwise law-breaking persons to abide such a background check law.

In general, David’s position seems to foretell that he wants it both ways…he speaks to the right or the need of people to keep guns for defense, yet apparently supports the District’s complete prohibition of functional firearms. I found most of his arguments to carry rather little weight.

Finally, several people have mentioned registration as a reasonable regulation…including Don Kates (1983), judge Silberman in 2007, etc. I am more than a little uncomfortable with firearm registration (particularly a federal registry) being argued as reasonable. To me such a measure flies directly in the face of the spirit and purpose of the 2A and the militia it enables. If the 2A boils down to enabling “the people” to overturn a despotic or tyrannical government, it does not bode with logic nor reason that such a very government would have access to the number, type, caliber, etc., as well as the names and residences of owners….the very people who via the 2A were intended to be enabled to overturn such a government.

http://armsandthelaw.com/archives/us_v_miller/index.php

What the court said was that it couldn’t take judicial notice of an SBS’s military utility. Certainly we know it has such a utility, but the court sent the case back to the lower court to make that determination. Miller was dead by the time his case was heard.

Interestingly, the military does use .22LR firearms, but they aren’t common soldier equipment. Suppressed versions are used by special forces because they can fire with virtually no noise.

IMHO the main problem is one of “standing”. There seem to be two types of 2A appeals: 1) criminal defendants who have beaten the main charge and now are trying to beat the gun rap, too. The courts don’t have much sympathy for these defendants because it would be very difficult to successfully argue that the 2A prevents the police from disarming a violent criminal. 2) Ordinary citizens who bring suit to restore their 2A rights. And ironically the Courts turn aside these cases, too, because the plaintiffs lack “standing”: they’re not threatened with jail or fines.

So Parker/Heller was cleverly crafted with six defendants, with the expectation that some of them would be dropped along the appeals process. Which is exactly what happened, and oddly enough, some of the courts disagreed on which of the plaintiffs had standing and which did not! In the end, only one plaintiff (Dick Heller) made it to the Supreme Court, because only he had actually gone to the local police station to try to register the handgun he carried as a licensed security guard, and he had been threatened with jail if he brought his handgun home. That threat was enough to give him standing.

It is all or nothing with the Bill of Rights.

Nothing can be piecemeal about it you cannot roundly
support 9 of the Amendments and leave one out.

It is disingenuous and wholly intellectually dishonest to accept
such a construction of original intent.

I like how the liberal Professors I encounter mark my grade down
because I won’t accept their proselytization.

One International Relations Professor started giving me C’s after
I brought up the atrocities of Nanjing after she kept harping on the
Evil American atrocities at Hiroshima and Nagasaki.

Okay whatever…..history is not about a one-sided truth nor a two-sided lie.

Of course, that’s also what makes our constitutional republic so interesting.

I really wouldn’t describe myself as a “gun controller,” though the reasons are largely political: I think that most “gun control” measures are symbolic and doomed to be both 1) ineffective and 2) likely to drive otherwise Democratic voters into the waiting arms of the Republican Party. As to the first, I think the best book is Jim Jacobs’ book several years back. As to the second, one simply has to read the literature on the rise of the “Reagan Republicans.”

sandy levinson

In the Kelo case it was the Liberals on the
Court that gave that case the majority.

And Kelo was WRONGLY decided!

Kennedy has been the swing voter
and has went with the Conservatives
on many many cases.

Certainly a landmark 2nd Amendment decision
at anytime 1937 to 1971 would have been a big upset
for us individual rights constructionists when the Court
was really an engine of liberalism.

This court isn’t demonstrably different than the one that gave us Kelo v. New London. Perhaps Heller will change that, I hope so. But as of this point in time, it is not a certainty nor even a probablility one could bet on with any degree of confidence.

Note – I do not own, indeed have never owned, a firearm. But I strongly believe an individual right exists, and it should be recognized.

It is TOO hard for them to swallow so they keep
having to try and and spin it.