As Ronald Reagan might have said…

there they go again:

The Second Amendment guarantees the rights of states to form militias, not for individuals to bear arms.

Chief Justice Warren Burger went so far as to say that the NRA’s interpretation of the Second Amendment was one of the greatest pieces of (constitutional) fraud ever perpetrated on the America public.

What Ron Lowe fails to mention, however, is that this opinion was not published in a Supreme Court decision, or even in a law journal. It was published in — wait for it — Parade magazine. Yep, that’s right. A Supreme Court Justice bitching in a throwaway Sunday paper insert. Dave Kopel pretty much dismantled Burger’s piece here, calling the Burger piece, “in a sense, the high-water mark for anti-Second Amendment ‘scholarship.'”

His slender essay on the Second Amendment fits with the rest of his Constitutional thought. That which he thought familiar and appropriate — hunting, fishing, old-fashioned religious lifestyles, the authority of the policeman and of the state — are the things which he thought Constitution should protect. Things which repulse him — a t-shirt with the motto: “Fuck the draft”, or homosexual sodomy, or the ownership of cheap guns by minority groups — he placed outside the boundary of Constitutional protection.

It is precisely this idiosyncratic, personalized method of analysis that judges, particularly Supreme Court Justices, are supposed to avoid. Constitutional analysis ought to rigorously and logically examine the Constitution’s text, history, legal cases, and principles. Such an examination was what Chief Justice Burger avoided when he found fishermen had a right to stick sharp, pointed hooks in the mouths of river animals; but poor women had no right to affordable self-defense guns.


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