Duke University’s Arguments Against A Statutory Second Amendment

BY Herschel Smith
1 month, 1 week ago

The Regulatory Review links a paper by Joseph Blocher of Duke University arguing against state preemption laws that prohibit more restrictive gun control statutes by cities and counties than instituted by the state itself.  The paper is entitled “Cities, Preemption, and the Statutory Second Amendment.”

He argues:

As a practical matter, though, nothing has done more to shape contemporary gun regulation than state preemption laws, which fully or partially eliminate cities’ ability to regulate guns at the local level. Although the claim is admittedly hard to prove, it is likely that these preemption laws—nearly all of which were adopted in the past forty years—have kept more gun regulations off the books in the past two decades than has the Second Amendment in more than two centuries (including in the nearly 1,500 cases filed since Heller). In effect, preemption laws restrict gun laws in precisely the places—cities—where they are most viable16 and provide broader protection for the right to keep and bear arms than the Constitution has ever done.

Further, he remarks:

… some states have enacted strict prohibitions. These laws, which Blocher deems “unmistakably partisan,” attach penalties to local attempts to regulate. Republican-controlled legislatures have enacted statutes that threaten local officials with fines, loss of funds, and removal from office. In Florida, for example, local leaders who impermissibly regulate firearms can face a $5,000 fine and personal liability for up to $100,000 in damages.

As long as the law encourages increased liberty, we like state preemption laws.  They are a good thing, and they will continue to expand to other states where they don’t currently exist.  This blog is well known as devoted second amendment absolutists, and so when someone proposes a scholarly fisking of our doctrines, we take notice.  He cites Heller’s “approval of longstanding forms of gun regulation” (page 17) and flatly states that local ordinances are “entitled to some respect, either for its own sake or as a proxy for collective wisdom.”  Collective wisdom has nothing whatsoever to do with God-given rights, nor the rights recognized in the constitution.

To begin with, we have long held that Heller was a weak decision.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

The common formula for absolving Scalia of problems and weakness in Heller is to claim that it was the best he could get out of the court, or otherwise, it was the beginning of a development in legal doctrine, the balance of which had to be developed and applied in lower courts before it could be carried any further.  But it is still noteworthy that neither Heller nor McDonald recognized the right to self defense with weapons outside the home.

Also, note that the term “recognized” is used above.  Rights are God-given, and the constitution on this paradigm is a covenant between government and the people, not a source of rights.  Since Scalia supplies a tip-of-the-hat to some gun control laws (he doesn’t mention which, how many, what locations, or anything else) this has in turn supplied 2A detractors with a never ending fountain of replenishment to attack the 2A any time and everywhere they can.  Even the author made hay of this on page 21 when he stated that “Heller itself indicates that concealed carrying of firearms is not even covered by the Second Amendment.”

But regardless of the fact that we see weakness in Heller, Mr. Blocher’s claims fall short.  The legal community is reading too much Stanley Fish and Jacques Derrida today and not enough history.  They have forgotten how to argue and craft rhetoric.  The best and most defensible way to read the 2A is to remember the lives of the men who wrote it.

“1. John Adams John Adams, as a 9-or-10-year-old schoolboy, carried a gun daily so that he could go hunting after class. 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 257-59 (1961). 2. Patrick Henry Patrick Henry would “walk to court, his musket slung over his shoulder to pick off small game.” Harlow Giles Unger, LION OF LIBERTY: PATRICK HENRY AND THE CALL TO A NEW NATION 30 (2010). 3. Daniel Boone “When Daniel was almost thirteen he was given his first firearm, a ‘short rifle gun, with which he roamed the nearby Flying Hills, the Oley Hills, and the Neversink Mountains.’ ” Robert Morgan, BOONE 14 (2007). 4. Meriwether Lewis Meriwether Lewis’s neighbor Thomas Jefferson observed that young Lewis “when only eight years of age . . . habitually went out, in the dead of night, alone with his dogs, into the forest to hunt the raccoon & opossum.” 8 WRITINGS OF THOMAS JEFFERSON, at 482.  5. Thomas Jefferson Thomas Jefferson himself carried as a lad. “When he was ten he was given a gun by his father and sent into the forest alone in order to develop self-reliance.” 1 Dumas Malone, JEFFERSON AND HIS TIME: JEFFERSON THE VIRGINIAN 46 (1948). As an adult, Jefferson wrote about a holster he made for one of his Turkish pistols, “having used it daily while I had a horse who would stand fire,” and he noted another holster he made “to hang them [the Turkish pistols] at the side of my carriage for road use.” 10 THE PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 320-21 (2004). Jefferson advised his fifteen-yearold nephew to “[l]et your gun therefore be the constant companion of your walks.” 8 THE PAPERS OF THOMAS JEFFERSON 407 (2004). 6. James Monroe Every day, “[w]ell before dawn, James left for school, carrying his books under one arm with his powder horn under the other and his musket slung across his back.” Tim McGrath, JAMES MONROE: A LIFE 9 (2020). 7. Ira and Ethan Allen Ira and Ethan Allen regularly carried multiple arms at once. For example, in 1772 Ira, Ethan, and a cousin went to purchase land near New York’s border “armed with holsters and pistols, a good case [pair] of pistols each in our pockets, with each a good hanger [sword].”

One might argue that John Adams’ school and the local “court” were as sensitive as schools of today, and not only were firearms openly carried, there was no concept of “sensitive places.”  Moreover, “In the colonies, availability of hunting and need for defense led to armament statues comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were “well armed”; in 1631 it required colonists to engage in target practice on Sunday and to “bring their peeces to church.”

Firearms were ubiquitous in Colonial times, and there was no need for an amendment which stated so or justified the right of men to own their “peeces.”  The second amendment was written to address a single issue – that of federal interference with the militia.  It would be quite an absurd proposition to claim that the very men who used their own “peeces” to go to war against their sovereign to ameliorate tyranny would see what they had written any other way than the right of men to live in liberty, and the right of combat to make that happen if necessary.

Hunting, self defense, and defense of home and hearth are certainly rights in God’s economy, but those are assumed as the presupposition, the axiomatic irreducible, for the second amendment to make any sense at all.  Before one even gets to the incorporation doctrine under the 14th amendment, there is no recognition of these facts by the author.

What does the author do then?  He focuses on various and sundry local problems like violence in Chicago.

Still, it is true that some of the regulations which have been held to violate the post-Heller Second Amendment are local and that stringent preemption laws might have kept them off the books in the first place. Chicago’s handgun ban is, of course, an obvious example. The fact that such laws have been struck down in court, however, suggests that preemption laws—if justified as a necessary protection for Heller’s right—are a solution in search of a problem.

Note his twisted logic.  We need local gun control because of violence in the inner city.  Local gun control is good.  State preemption laws prevent this sort of gun control.  Such local gun control has been struck down in court before, so state preemption laws are unnecessary (a “solution in search of a problem”).

That silly train of logic is offered up for a city where firearms carry is still illegal, hasn’t been struck down in court, and that infringement isn’t being prevented by state preemption.  Mr. Blocher needs to find a good course in formal and modal logic at Duke and sit for some training.

Never mind that his focus is on gun control, when he never even asks the question, “How could John Adams carry his “peece” to school with him and there was no violence, and we can’t get a handle on gangland?”  He never asks root cause questions such as, “Have we created this problem ourselves by government programs eviscerating the family unit?  Will we ever end the violence with gun control if access to firearms isn’t the cause of the problems?”

But the biggest leap in legal logic is found on page 17.

One obvious reason for the traditional variation is that the costs and benefits of guns vary by location. In crowded urban areas, the externalities of gun use (and misuse) are higher. In rural areas, there are more opportunities for traditionally lawful purposes like recreation and hunting, and police response times tend to be longer, thus arguably increasing the utility of a gun for self-defense.

And on page 23, he states the following.

One of the ripple effects of broad preemption laws might be to dampen the use of local law to establish a duty of care.

There is no “duty of care” and the author knows this.  This isn’t merely an error – it’s an intended oversight because the consequences of admitting the truth are lethal to his arguments.  Nor is there a duty of police protection, and likewise, the author knows this as well.  See the following.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

No trained attorney is ignorant of these things.  The courts have repeatedly ruled that the police cannot be there all of the time, are under no legal obligation to respond in any certain time frame, and are under no duty to protect citizens (notwithstanding contractual obligations such as witness protection).

Throughout the paper the author speaks from the perspective of public safety without addressing the overarching concern of individual safety, security and right of self defense.  He also doesn’t address the fundamental basis of the second amendment as the surety against tyranny.

It may be a nit, but it’s worth mentioning.  There are silly remarks cited by the author that significantly detract from the intended seriousness of this paper (page 18).

… as Professor Richard Briffault has noted: if “the fifty states are laboratories for public policy formation, then surely the 3,000 counties and 15,000 municipalities provide logarithmically more opportunities for innovation, experimentation, and reform.”

There is nothing about this that is logarithmic.  Even without granting any validity to the assumption that experimentation with rights is a good thing, we observe that each county or city is an uncorrelated variable.  This isn’t like a deck of cards that can be arranged in many different sequences (52!), or 52 factorial.  This is linear, not logarithmic.

We started saying that we always look up when someone comes along claiming a scholarly analysis of the 2A.  This author apparently thinks he succeeded.  He did not.  He belongs in the department of sociology rather than law.

Finally, the author has turned the ideas of the founders on its head.  Liberty means the right of local tyrants to enact stricter and stricter laws on its people because the smallest locale is the laboratory of democracy.  Experimentation is a good thing, according to him.  It was against such local tyranny that the founders went to war, and it was against such local tyranny that Heller and McDonald were written, however weak we see them.


Comments

  1. On May 22, 2022 at 10:42 pm, Jon said:

    Government is not the answer to these problems.

    Sparks, Nevada after 2010 had roughly the same violent crime rate as Compton, California.

    One clearly had stricter gun laws and one had fewer.

    IT MAKES NO DIFFERENCE!! Inanimate objects CANNOT make decisions to be good or evil.
    Saying they tempt people, is the same as blaming yeast for you being fat because you eat too much bread. (It goes both ways, more guns doesnt equal less crime. More good people who will Righteously and Vigorously defend the innocent from evil, will drive evil away. Where light is darkness will leave, spritual or physical). STEALING the tools of good men to solve problems in their own community doesnt help for sure. Weird that violence begets violence, government initiated or not.

    If I’ve done nothing wrong, havent hurt anyone, havent threatened or been reckless, Pound Sand.

    They cant give people responsibilty, because that would mean their ivory tower job in the Fed bureaus would be eliminated, along with the retirement.

  2. On May 23, 2022 at 7:01 am, Chris said:

    Peculiar that the local control, anti-preemptionists never argue for local options on the 13th and 14th amendments.

  3. On May 23, 2022 at 7:15 am, Fred said:

    Aren’t the bill of rights the very thing he argues against but at the federal level? Is not the second amendment federal preemption of state and municipal firearms laws? He must know that because he argues only the case law of the courts never addressing the highest (in US law) preemptive law which is the BOR.

    In the mind of tyrant, the so called supremacy clause is absolute but it’s the only absolute, all else is subordinate. The guy would sit at the feet of Stalin or Mao or Hitler to justify by law their actions.

    The devil’s minions have no new trick they just repackage the same argument. Wasn’t Chicago gang (Mob) violence the “reason” for banning the dreaded Tommy Gun and all makes of a similar action? There’s more murder both by raw numbers and per capita in Chicago than ever but the Tommy Gun was outlawed more than 80 years ago.

    The public safety argument is poorly constructed by the pro gun side as well. If the individual has no right and duty to defend himself in all circumstances, then the puplic has no safety whatsoever. I am the public, and if I have a right to safety (which I don’t but we’re arguing with leftists, so…) then I have the right to effect that safety. The public is in no way safe if the the individual is not safe.

    The left substitutes self defense with public safety. They are collectivist. Which indicates that they are cowards. They want a mommy to nurture the the group and give it public safety. Men, real men, desire a Father which art in Heaven; from Him all power and authority flows for He is just and holy and perfect in the wrath of His judgment, and the only truth for instruction in righteousness (law), and yet as our loving and caring Father the mercy and grace of living water flow from His throne.

  4. On May 23, 2022 at 7:33 am, Bill Buppert said:

    The Heller decision proved to me the hazard of using a legal system captured by government supremacists to protect individual rights. One would be hard pressed to find a law at that level that preserves or expands individual liberty at all.

    The Federal court system tends to be a rubber stamp for all government intervention in individual lives.

  5. On May 23, 2022 at 9:14 am, Frank Clarke said:

    “…The second amendment was written to address a single issue – that of federal interference with the militia.”

    Not true at all. The militia clause in the Second A was not its justification, it was an excuse:

    “You need a reason why the RKBA is necessary? I’ll give you one: without it, you can’t have a functional militia. Put that in your pipe!”

    There are many reasons why RKBA is necessary to our system; the ‘militia excuse’ is just one of them.

    Further, the 2nd was written as if it were intended to be enforced nationwide and permanently. The 1st says “Congress shall make no law…”, but the 2nd just says “shall not be infringed” with no indication that such infringement is prohibited in particular places or at particular times. A right-thinking AGUS could go after NY and NJ with torches and pitchforks.

  6. On May 23, 2022 at 9:19 am, Herschel Smith said:

    A difference without a distinction.

  7. On May 23, 2022 at 9:32 am, Frank Clarke said:

    Blocher starts off with “Most people in the United States live in urban areas, and a
    disproportionate number of gun homicide victims die in them despite the fact that gun ownership is much less common in cities than in rural areas.”

    Immediately, he has torpedoed his own line of argument by equating unlawful possession/use of guns with the much more typical lawful possession and use.

    Within America’s almost 4 million square miles, virtually all “gun crime” occurs in territory that probably totals less than 400 square miles: the inner cities of about 2 dozen American cities. Remove from America’s “gun crime statistics” the activity within those 400 square miles, and we suddenly look like the safest country on Earth.

    Stated another way, if you stay out of places like that, then you ARE living in the safest country on Earth.

  8. On May 23, 2022 at 10:45 am, Furminator said:

    1A restricts legislative authority; 2A is an absolute.

  9. On May 23, 2022 at 1:16 pm, Frank Clarke said:

    @Furminator: Precisely.

  10. On May 23, 2022 at 1:57 pm, Don't mind me said:

    I you removed the five most crime ridden counties in the country out of the equation, the United States would be one of the safest countries in the world.
    The Federal Government is illegitimate, and no longer has the authority to enforce any law at all, so articles like this I tend to view as statist straw grasping to try and keep their relevance alive. Fortunately more people seem to be waking up.

  11. On May 23, 2022 at 2:21 pm, Henry said:

    “The Heller decision proved to me the hazard of using a legal system captured by government supremacists to protect individual rights.”

    This is why “good government” is an insane hope: we enumerate rights to protect us from government overreach, then set that very same government in charge of interpreting what those rights actually mean and when they need not be applied.

  12. On May 30, 2022 at 12:37 am, Daniel K Day said:

    Frank Clarke correctly points out above that ‘[T]he 2nd was written as if it were intended to be enforced nationwide and permanently. The 1st says “Congress shall make no law…”, but the 2nd just says “shall not be infringed” with no indication that such infringement is prohibited in particular places or at particular times.’
    This is a side point to the issue of gun control, but it’s worth noting that the First Amendment is the *only* amendment which begins with the words ‘Congress shall make no law’.

  13. On May 31, 2022 at 7:03 am, Roland said:

    A short note, perhaps badly written: The Founders used “will” and “shall” in very specific ways, depending on 1st or 3rd person usage. First person (I/We) used “shall” to mean something might happen (I shall visit…) and “will” to mean it definitely takes place without fail (I will attend…).

    Switching to third person (he, she, it, Congress) reverses the meaning…therefore, “Congress shall make no law…” means it is definitely prohibited from doing that. Similarly, “…the Right of the people shall not be infringed.” means it, also, is prohibited from happening.

  14. On June 5, 2022 at 1:09 am, Hudson H Luce said:

    Jefferson, in the Declaration of Independence, writes that certain rights are sacred and undeniable, from the fact of creation of men as free and independent, and that these rights – to life, liberty, and the pursuit of happiness – are inalienable and inherent. Obviously, if you have the inalienable and inherent right to life, you have the inalienable and inherent right to protect that life. That pre-existing inalienable and inherent latter right is simply enumerated in the Second Amendment, and any attempt by government to infringe or nullify that right makes *the government* into a contract breaker, into an enemy, and it is the right and duty of the people to alter or abolish said government.

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You are currently reading "Duke University’s Arguments Against A Statutory Second Amendment", entry #30385 on The Captain's Journal.

This article is filed under the category(s) Featured,Second Amendment and was published May 22nd, 2022 by Herschel Smith.

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