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Old October 24, 2011, 08:15 PM   #1
Tennessee Gentleman
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Just finished reading Gun Fight by Adam Winkler

While relaxing on the beach in FL I had the oppertunity to read Adam Winkler's book entitled "Gun Fight".

I would recommend it but get it from a library don't buy it. I really like the insight into how the Heller decision was fought and won with no real help from the NRA. In fact, one of my major bone of contentions with my NRA is that they should make more common cause with other groups like the Second Amendment Foundation and others.

Another fascinating part was the critique leveled at Scalia and Heller by Richard Posner and Nelson Lund who said Scalia not only did not use originalism, his trademark, but really was guilty of judicial activism! And these guys are conservatives who (in Lund's case) thought originalism justified the individual right to keep and bear arms. They really hit Scalia on the "in common use" argument on handguns since there was no historical basis for that argument.

I think Winkler although pro gun control skewers both extremes of the debate and give an interesting history of the NRA which approved of and actually help draft gun control legislation.

I recommend it.
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Last edited by Tennessee Gentleman; October 24, 2011 at 08:24 PM.
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Old October 25, 2011, 05:28 AM   #2
Aguila Blanca
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Haven't seen the book but I sort of agree about Mr. Scalia. But I can't get inside his head.

He created a HUGE can of worms with the bit he threw in about existing gun control laws being "presumptively" Constitutional. Naturally, the antis have latched onto that as justification, but it really isn't. All he was really saying is "This is not the question before us, so we're not going there today." But ... it leaves us having to fight innumerable skirmishes in all 50 states when a stroke of the pen could have prevented all that.

However, I believe that Mr. Scalia is a realist, and I think he felt he had to write something that would be supported by at least four other justices in order to get a majority, and Kennedy is not as pro-2nd Amendment as some others so I think Scalia was throwing a bone to Kennedy.

Just my take.
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Old October 25, 2011, 06:34 AM   #3
Bartholomew Roberts
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I think the "presumptively lawful" comment has actually served an important function. One of the big issues with the Second Amendment is that bad guys end up in court for using guns a lot more often than good guys. There are 1,000 Millers for every Heller or McDonald.

The "presumptively lawful" comment gives judges an easy way to dismiss bad plaintiffs at lower levels without creating bad precedent for us; and lately it seems, it has meant that judges rarely do a good analysis even with good plaintiffs, meaning that the collectivist wing of the Court must do all the heavy lifting to defend a gun law.

I would probably agree that the originalist take on the Second Amendment was compromised by a need to write an opinion that would get 5 votes. However, I think the common use test has at least some grounding in originalism.
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Old October 25, 2011, 08:23 AM   #4
Stressfire
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Quote:
I would recommend it but get it from a library
+1 for that

I ordered it for the library I work at, haven't had a chance to read it yet - keeps going off the shelf as fast as it comes in. Gotta love a rural county
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Old October 25, 2011, 08:14 PM   #5
Tennessee Gentleman
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Quote:
Originally Posted by Bartholomew Roberts
However, I think the common use test has at least some grounding in originalism.
I like the concept as it defeats the "I want a grenade launcher" argument but I am not sure how it fits with originalism.

The way it was put forth in the book was that it didn't matter what people thought about handguns today but whether they would have tolerated a handgun ban in 1790.

Maybe I don't understand fully the theory of originalism but it begs the question how could the Founding Fathers think about the stuff we have today like the internet and the automatic breech loading weapon.

Seems as though we have to fashion something living to make the the concept work?
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