Miers on the Right to Keep and Bear Arms

Discussion in 'Freedom and Liberty' started by E.L., Oct 11, 2005.

  1. E.L.

    E.L. Moderator of Lead Moderator Emeritus Founding Member

    [David Kopel, October 3, 2005 at 6:20pm] 21 Trackbacks / Possibly More Trackbacks
    Miers on the Right to Keep and Bear Arms: The New Republic's fine &c blog points to a 1992 article she wrote for the Texas Lawyer. In the article, she points to three infamous multiple homicides in Texas: the 1966 Texas Tower Shooting, in which a man climbed the clock tower at the University of Texas, and shot 14 people. (He was finally stopped when two policemen and a civilian rushed the building.) The second was the 1991 Killeen massacre, where a man entered a Luby's Cafeteria, and methodically slaughtered 23 unarmed people. (The incident played a major role in Texas rescinding its ban on carrying concealed handguns, and enacting a Shall Issue permit law.) The third incident in Miers' article had taken place recently; a man murdered two judges and two lawyers in a Fort Worth courthouse.

    "How does a free society prevent" such crimes, she asked. She then explained:

    The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.
    Miers, however, rejected the notion that "precious liberties", including "the right to bear arms," should be sacrificed in the name of crime prevention. Quite obviously, she was referring to the "right to bear arms" as an individual right.

    It's technically possible that she was referring only to the Texas Constitutional arms right, which clearly is individual, rather than to the Second Amendment. However, the context of the quote does not seem so constricted, and even to describe the Texas right a precious liberty says a good deal about Ms. Miers' thinking.

    She then explained the true solution to crime:

    We will be successful in solving our massive crime problems only when we attack the root causes....

    We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.

    I agree, and have argued in the Barry Law Review that much-improved pre-school programs for at-risk boys would be far more effective, in the long run, at reducing violent crime than would gun control or even more draconian "conservative" federal criminal laws.

    As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense. (I'll fill in the details on him in a subsquent post.) And even Brandeis had not specicially mentioned "the right to bear arms" as one of the "precious liberties" that "We are not willing to sacrifice."

    Many web writers have raised legitimate questions about Miers. In terms of the right to arms, however, Americans who love their precious liberties need not hope about the unknown, but need only expect her to be consistent with what she has already said.

    UPDATE: Just to clarify a few points: 1. It's possible that some nominee in-between Brandeis and Miers said something nice about the right to arms or self-defense, prior to his or her nomination. As elective candidates, Black, Warren, or O'Connor might be especially likely to have done so. It's just that, among the pro-RKBA community, there are no well-known quotes from them, as there are from Brandeis and Miers. 2. Everybody makes typos, but I agree that the quantity of errors in Miers' short article is troubling. 3. Clearly there were other potential nominees--including Pryor, Brown, and Jones--who have a more established record on the right to arms, and whose record on that issue is clearly part of a coherent judicial philosophy. 4. Given Miers' hero-worship of Bush, it is fair to wonder how often--if ever--she would rule against a position argued by Bush's Solicitor General. The current Bush policy is to defend all federal guns laws (including the D.C. handgun prohibition)--not by denying that the Second Amendment is an individual right, but by arguing that the civil plaintiffs do not have standing to challenge the law unless they are actually criminally prosecuted. That said, Miers is still very likely an improvement over O'Connor, who in United States v. Staples (1994)joined Justice O'Connor's concurrence regarding "the 'widespread lawful gun ownership' Congress and the States have allowed to persist in this country" and "the notable lack of comprehensive regulation." (emphasis added).

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