Top Liberal Constitutional Law Expert: Gun Ownership Is An Individual Constitutional Right As Important As Freedom of Speech Or Religion


Cuomo: Gun Control Would Have Never Happened If Public Was Allowed To Review It

(Washington’s Blog) -To Protect Against Abuse By An Oppressive Government

Professor Jonathan Turley is one of the nation’s top constitutional law experts.   Turley:

  • Is the second most cited law professor in the country
  • Has worked as both the CBS and NBC legal analyst during national controversies
  • Ranks 38th in the top 100 most cited ‘public intellectuals’ in a recent study by a well-known judge
  • Is one of the top 10 lawyers handling military cases
  • Has served as a consultant on homeland security and constitutional issues
  • Is a frequent witness before the House and Senate on constitutional and statutory issues

As Wikipedia notes, he’s also a “card-carrying liberal”:

Professor Turley is widely regarded as a champion of the Rule of law; his stated positions in many cases and his self-proclaimed “…socially liberal agenda…” have led liberal and progressive thinkers to also consider him a champion for their causes, especially on issues such as separation of church and state, environmental law, civil rights, and the illegality of torture. Politico has referred to Turley as a “liberal law professor and longtime civil libertarian.”

So one might assume that Professor Turley believes that the Second Amendment is to protect hunting or militias … and not the right of people to protect ourselves from government abuse.

In fact, Turley wrote in 2007 … in a post entitled “A Liberal’s Lament: The NRA Might Be Right After All“:

For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is “the right of the people to keep and bear arms.” Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda.

***

It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “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.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

***

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

Indeed, the Founding Fathers’ own words prove Professor Turley right:

What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms. – Thomas Jefferson

A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government. – George Washington

(The Constitution preserves) the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms. –James Madison.

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self defense which is paramount to all positive forms of government… – Alexander Hamilton, The Federalist (#28) .

To disarm the people is the best and most effective way to enslave them. – George Mason

The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. –Noah Webster, “An Examination into the Leading Principles of the Federal Constitution (1787) in Pamplets on the Constitution of the United States (P.Ford, 1888)

The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. –Samuel Adams, debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87.

Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…The great object is that every man be armed. Everyone who is able might have a gun. –Patrick Henry.

Those who beat their swords into plowshares usually end up plowing for those who didn’t. – Ben Franklin

Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property… Horrid mischief would ensue were the law-abiding deprived of the use of them. –Thomas Paine

Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? – Patrick Henry, 3 Elliot, Debates at 386.

The right of the people to keep and bear…arms shall not be infringed. A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country… –James Madison, I Annals of Congress 434 (June 8, 1789).

The best we can hope for concerning the people at large is that they be properly armed. –Alexander Hamilton, The Federalist Papers at 184-B.

[T]he unlimited power of the sword is not in the hands of either the federal or the state governments, but where I trust in God it will ever remain, in the hands of the People. – Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788.

And – as hard as it might be to believe – Gandhi also railed against gun control by the British in India as taking away the right of the Indian people to defend themselves from abuse by the government.

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