Richard Epstein reacts to former Supreme Court Justice John Paul Stevens’ suggestion that the Second Amendment be repealed — and explains why the constitutional arguments about guns may point in a different direction than the policy arguments.

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Published in: Guns, Law

There are 4 comments.

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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens

    So the “libertairian” does not think we have a God-given right to bare arms. 

    The 2nd Amendment does not limit our rights, it defines them.

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  2. Belt Inactive

    Richard was addressing the issue as a matter of Constitutional law and interpretation.  As a matter of libertarian philosophy, my guess is that he is okay with some restrictions, though I don’t believe I’ve ever heard him state what limits the government should impose on the right to bear arms, or to what extent a citizen should exercise those rights.  Perhaps he should address that sometime.

    I personally think he’s interpreting the ‘passive clause’ of the 2nd amendment too narrowly.  I see the concept of a ‘well-regulated militia’ as encompassing a citizen’s rights of and duties towards defense of one’s self, family, property, community, and nation, not just as a organized function of the state or federal government.

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  3. mildlyo Member

    I believe the third amendment was in fact cited 2013 in Nevada in a case where SWAT teams demanded entry to homes near an active shooter situation. The homeowner disagreed with the right of the police to compel entry and use of his property.

    Any opinion from the libertarian?

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  4. GFHandle Member

    Lawyers should study grammar. “A well regulated Militia, being necessary to the security of a free State” is NOT a “passive clause” (whatever that is). It is not even a clause, since it has no verb (“being” is a verbal). It would be a clause if “is” were substituted for “being.”  In that case, the two clauses would be co-ordinate, or equal.

    As it stands, we have a simple sentence with an introductory participial PHRASE. A phrase is a lesser part of a sentence and can be removed. If you remove the actual clause (“the right…shall not be…”) you have a meaningless sentence fragment.

    Even if we had two clauses (subject plus predicate) we would have a complex sentence where the “Dependent” or “Subordinate” clause, in every grammar book I’ve ever taught English Composition from, is there to add meaning to the “Main” or “Independent” clause, the one that could itself be a sentence. In this case, the introductory participial PHRASE serves merely to give a reason for the actual sentence. The second amendment begins with a simple sentence whose main import comes only AFTER the introduction.

    “Mary being a lazy worker” is not a sentence. “We must let her go” IS a sentence. Combine them and she loses her job, no matter how accurate the evaluation of her performance may be.

    Does this matter in Con Law? Probably not. Still…

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