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November 3, 2009

It is officially time for Second Amendment fans to start supporting NBA's Delonte West

This local article from Maryland, which is headlined "Cavs Delonte West Faces Weapons Charges," reports that a prominent NBA player is now officially facing state criminal charges for posessing guns in self defense.  Here are the basic legal details:

Prince George’s County Grand Jury has returned an eight count indictment against Cleveland Cavaliers Guard Delonte West.  West is charged with transporting concealed weapons.

Police say the former Eleanor Roosevelt High School basketball star was found with two loaded pistols and a shot gun after being pulled over on the Beltway September 17th.  Police say the Cavaliers guard was riding a three wheeled motorcycle when he cut an officer off on the outer loop near Central Avenue.  On the side of the road police say West admitted he was armed....

"These charges carry up to three years in jail for each offense,” said State’s Attorney Glenn Ivey. “So potentially he could be looking at some jail time here... I don't know that the sentencing guidelines are going to require that but we'll have to see how that plays out over time."

Ivey says West has not yet hired an attorney to represent him.  The State’s Attorney says he expects an early January trail date will be set.  West has not commented on his arrest but his father did, telling reporters in September his son was protecting himself from “a lot of not too nice people out there.”

Delonte West has said he suffers from Bipolar disorder.  He left training camp last year to get treatment for depression.  West, who could still face a league suspension over the charges in Maryland, made his season debut during Saturday night's 90-79 win against Charlotte, scoring 13 points in 24 minutes.

This Washington Post account of the indictment provides more of the legal particulars and also spotlights why West need to be seriously concerned about facing prison time:

In addition to the weapons offenses — each of which is a misdemeanor carrying a maximum penalty of three years in prison — the grand jury also indicted West, 26, on one count each of reckless driving and negligent driving.

Prince George's prosecutors routinely seek jail time for people convicted of weapons charges, even first-time offenders.  State's Attorney Glenn F. Ivey said West's case will be handled no differently than any other.

I trust that West has the resources to hire a first-rate criminal defense attorney.  I sincerely hope that his attorney(s) will have the insight and courage to realize that the Supreme Court's ruling and reasoning in Heller provide a plausible Second Amendment claim for West if he truly was keeping and bearing arms for personal self defense when pulled over by the police.

Some related posts on Delonte West's situation and other celebrity gun possession cases:

November 3, 2009 at 06:32 PM | Permalink

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Comments

"I trust that West has the resources to hire a first-rate criminal defense attorney."

According to wikipedia, he makes $4,254,250 a year.

Posted by: . | Nov 3, 2009 7:02:54 PM

"I sincerely hope that his attorney(s) will have the insight and courage to realize that the Supreme Court's ruling and reasoning in Heller provide a plausible Second Amendment claim for West if he truly was keeping and bearing arms for personal self defense when pulled over by the police."

Perhaps, Doug, the local attorneys, who likely know the lay of the land better than you, can be trusted to represent their client. You refer to "insight"--awfully presumptuous. And as for "courage", since when is making a legal argument "courageous"?

Posted by: federalist | Nov 3, 2009 7:13:47 PM

Federalist,

I can think of a few cases where making a legal argument is courageous. Arguing for Larry Flynt used to be such an endeavor. It might get you shot at. I doubt this particular action qualifies.

Posted by: Soronel Haetir | Nov 3, 2009 8:13:59 PM

Since when, federalist, is making an unpopular legal argument NOT in a sense professionally courageous? Of course, this is not courage on a scale with folks who make real personal/safety risks in other lines of work. But, in the relatively safe universe of lawyering, making unpopular arguments is a form of courage.

Whatever you definition of courage and insight, federalist, I'd be interested to know if you agree or disagree with my instinct that West has a viable Second Amendment claim (assuming incorporation, of course).

Posted by: Doug B. | Nov 3, 2009 9:28:34 PM

This is only a second amendment issue if (1) the guns are legal registered to Delonte West (2) he possess a gun license (3) he has a permit to carry a gun and (4) the guns were being transported/ carried in a lawful manner. If any one of these issues are not the case, the second amendment is not relevant in this case.

Posted by: jim | Nov 3, 2009 9:53:46 PM

Jim, what is the difference between points 1 + 2 + 3? Plus, are you saying that all persons are subject to all these sorts of restrictive regulations before being able to possess a gun for self defense?

Posted by: Doug B. | Nov 3, 2009 9:59:58 PM

Doug, Jim's comment is typical of many who think the second amendment is tied to rules, but don't realize rules can be simple, making the ownership and use of firearms easy for self-defense, or almost prohibitive as are the draconian laws of both the state of New York and New York City.

I would like to see the thousands of our citizens who are now in prison for violating some state regulation or law sue the state, the prosecuting attorney, the judge, and even the arresting officer for violating their civil rights. I left out the jury due to the ignorance of most citizens on the Second Amendment. They are advised by the judge to make their decisions on the laws upon which the so-called violators have broken.

I don't know if anyone has ever done that, but if anyone knows, please make a comment. I doubt it as if anyone has, I believe we would have heard about it. Most state's gun laws are unconstitutional.

Posted by: Rick | Nov 3, 2009 10:28:53 PM

Doug --

Putting to one side the question whether it's courageous to make an unpopular legal argument, I think it would be simply foolish to make the Second Amendment argument here.

You generally want to press a novel argument against the backdrop of favorable facts. The facts here are anything but. We have a guy who admits to being a little crazy ("bipolar" -- aren't they all) riding around the Beltway with half an arsenal on him. What's he defending himself against? A guy who passes him on the right? Some motorist who makes an impolite hand gesture?

Good grief. A millionaire pro athlete engaged in this sort of reckless behavior is the LAST guy I'd want as a test case for the Second Amendment post Heller.

Posted by: Bill Otis | Nov 4, 2009 3:51:30 AM

Bill, as I have explained in this space before, all the reasons you mention are exactly why West's case is an important Second Amendment test case. It is real easy to support free speech or free exercise of religion or gun possession when a non-threatening person wants to exercise these rights in a way that most everyone finds pleasing. But in those cases you do not really need CONSTITUTIONAL RIGHTS protected by COURTS --- the opportunity to speak freely and to exercise religious rights and to possess a gun in non-threatening ways will be generally protected by legislaures and executive officials.

RIGHTS becomes truly important and meaningful when threatening persons want to exercise the right in ways that make others uncomfortable (e.g., when neo-Nazis want to march in Skokie). In those hard cases, we discover whether courts (and others) really consider the right fundamental or are instead willing to forgo the right when it is no longer easy to support its exercise.

The fact that people who claim they care deeply about gun rights and self-defense rights become quiet in hard cases like West's highlights for me that relatively few people REALLY want gun rights under the Second Amendment to be a truly important and meaningful constitutional protection against government authority.

Posted by: Doug B. | Nov 4, 2009 8:12:03 AM

Doug --

It's a matter of strategy, as illustrated by the Heller case itself. The pro-gun side very carefully selected a sympathetic, law-abiding, responsible plaintiff to sue the District of Columbia. If they had chosen Delonte West, they would have been nuts. They also would have had enormously increased the chance that they would lose.

Thinking that a right is fundamental is a reason to value, not eschew, the shrewdest stategy for bringing it about. And in this instance, as in most, the shrewdest strategy is an incrementalist one.

Posted by: Bill Otis | Nov 4, 2009 9:37:05 AM

Doug, clearly the Second Amendment argument is out there--people know about it. I cannot imagine that if the West defense team decides to make it there will be a whole lot of eyebrows raised. That's hardly a scenario that screams "courage". Once again, your gift for hyperbole shows.

Posted by: federalist | Nov 4, 2009 10:06:18 AM

"Jim, what is the difference between points 1 + 2 + 3? Plus, are you saying that all persons are subject to all these sorts of restrictive regulations before being able to possess a gun for self defense?"
Yes. There should be reasonable restriction on owning a gun. Getting a license to own a gun is not unreasonable. You need a license to drive a car. Registering a gun is is not unreasonable. All cars need to be registered.

I do not want convicted murders, people with mental illness, or honestly people who can not shoot straight owning a gun. These are not unreasonable restrictions and I stand with what I typed earlier.

Posted by: jim | Nov 4, 2009 10:26:38 AM

Jim,

Driving (or even owning) a car is not an enumerated constitutional right.

I do agree with Bill Otis though than an incremental approach is best.

Posted by: Soronel Haetir | Nov 4, 2009 10:56:22 AM

jim,
The fact that you "do not want" certain people owning guns is the exact reason it was put in the constitution: so that the people, via the legislature, could not take away certain rights merely because they "want" to. That being said, there are of course limits to all constitutional rights.

And Soronel is entirely correct. Your analogy to cars makes little sense when being compared to an individual’s constitutional rights.

On another note, I'm not sure you answered Prof. Berman's question about the difference between your points 1, 2, and 3. I had the exact same question when I read your post.

Posted by: DEJ | Nov 4, 2009 11:31:51 AM

"And Soronel is entirely correct. Your analogy to cars makes little sense when being compared to an individual’s constitutional rights."

Cars and guns are both equally dangerous. Therefore there possession do require a certain amount of regulation. While driving a car is not a constitutional right,a gun is at least as dangerous as a car. Furthermore, guns today are a lot more powerful than there were 200-300 hundreds years ago.

A person can have a gun license without owning a gun like a person can have a driver license without owning a car. A person could be a gun collector and own hundreds of gun but may not have a gun license.

If a person is carrying a gun in public or in there car, IMO they should have a gun license and the gun itself should be registered. Neither requirement is a strenuous requirement IMO.

Furthermore, some people should not own guns. Do you really wanted people who are mentally unbalanced to be able to acquire guns easily. Should murders be allowed to get a gun whenever they want. No right is absolute and the same is true for gun possession.

Posted by: jim | Nov 4, 2009 11:54:26 AM

Printing presses are far more capable than at the time of ratification. Let's require licenses for them as well.

Posted by: Soronel Haetir | Nov 4, 2009 12:14:31 PM

"Printing presses are far more capable than at the time of ratification. Let's require licenses for them as well."

Not for anything, guns and printing presses are two different things.

Posted by: jim | Nov 4, 2009 12:21:39 PM

Just pointing out that is what your argument sounds like.

Also I would point out "Congress shall pass no law" is arguably weaker than "shall not be infringed".

Posted by: Soronel Haetir | Nov 4, 2009 12:51:27 PM

federalist, I see that you are once again eager to note my "gift for hyperbole" without explaining whether you agree or disagree with my instinct that West has a viable Second Amendment claim (assuming incorporation).

Given that neither Plaxico Burress or Lil Wayne made express Second Amendment claims before going off to NY prison on gun possession charges, I think it will be a big deal if West raises explicitly a Second Amendment defense. And that's why I am interested to hear if you (or Bill Otis, for that matter) thinks he has a viable claim in light of his apparent self-defense-driven decision to keep and bear arms while in Maryland.

Posted by: Doug B. | Nov 4, 2009 2:28:24 PM

Prof B,

I will say that I do not believe he has such a defense. Even granting incorporation the cases ruling that unlicensed concealed carry is not protected remain good law. Perhaps if the arms had been displayed openly there would be such a defense. There *might* also be a viable defense (again granting incorporation) if he had in fact applied for permits but had been denied under arbitrary application of the regulations. My working assumption however is that no such attempt was made.

I don't see the bipolar issue as being important either way.

Posted by: Soronel Haetir | Nov 4, 2009 2:58:37 PM

Doug, to be honest, I think he has a claim, but the reality is that this thing isn't going to trial, and it's going to be solved by a plea. By the time the claim got adjudicated, his time would probably be up.

The fact is that even if the claim is viable, what is the effect on the statute criminalizing his behavior? Is it void? Likely not. Is it unconstitutional as applied to him? Who knows? But it's gonna take a long time to figure out.

That's why, practically speaking, it may not be worthwhile to raise the claim. I'm sure that the local defense attorneys will have a handle on this.

Posted by: federalist | Nov 4, 2009 4:59:19 PM

>Doug, to be honest, I think he has a claim, but the reality is that this thing isn't going to trial, and it's going to be solved by a plea. By the time the claim got adjudicated, his time would probably be up.

You call Prof. Berman "presumptuous," but you're the one who knows exactly how everything will turn out? Are you counsel in the case?

It's a very bold prediction you've made there, too, given that 95% of cases end in pleas.

Posted by: Pendulum | Nov 4, 2009 5:32:57 PM

"On the side of the road police say West admitted he was armed.... "

No one in the comments asked if he was Mirandized first. Must he be?

Interesting comments on this one. Prof B's 8:12:03 AM comment is especially compelling, but the arguments against that argument is that status (or likability) is more important than constitutional rights. True enough. How did that happen?

Posted by: George | Nov 4, 2009 5:42:06 PM

pendulum, obviously, my statement is speculation. The thrust of my comments has been to let the local attorneys do their thing.

Posted by: federalist | Nov 4, 2009 7:02:29 PM

Doug --

West does not have a viable Second Amendment argument. It's difficult if not impossible to believe that any sensible notion of "self defense" could or would be stretched to include an untethered and generalized, if not paranoid, fear that SOMEBODY OUT HERE ON THE BELTWAY MIGHT BE OUT TO GET ME.

If that were a legitimate predicate for self defense, then self defense as a legal doctrine would lose all meaning. It should never fly and it's not going to.

Mr. West would be better off with an insanity defense. That won't work either, but it has a better shot than the notion that a court will effectively make the Second Amendment an absolute right. It isn't and, like the First Amendment, shouldn't be.

One question for you: Do you really want the Dodge City world a successful Second Amendment argument in this case would create?

Posted by: Bill Otis | Nov 4, 2009 8:45:40 PM

SOMEBODY OUT HERE ON THE BELTWAY MIGHT BE OUT TO GET ME.

Is it unreasonable for West to feel this way given that he makes 4 million a yr?

Posted by: Anon | Nov 4, 2009 9:56:24 PM

Anon --

Yes. Indeed, it's not merely unreasonable, it's crazy. The doctrine of self defense requires far more than just that the defendant be aware of some reason that someone, somewhere, might have a reason to harm him (since that would describe virtually every adult). It requires that he have a specific and objectively reasonable fear that he is in imminent danger of grave bodily harm or death. There is nothing I'm aware of in the West case that even approaches that standard. If you know of something, I'm all ears.

Under the test you propose, anyone with $100 in his wallet walking down the streets of Georgetown past midnight on a Saturday night would have the right to pack a loaded gun.

In other words, we'd be back to Dodge City, as I noted. I am not aware of a single serious person who thinks Heller does or should allow the courts to take the Second Amendment that far.

Posted by: Bill Otis | Nov 5, 2009 12:31:51 AM

Bill, as you should know, many gun advocates believe and contend that more gun = less crime. If true, we are not at risk of Dodge City but of greater peace and tranquility if everyone walking down the streets of Georgetown past midnight on a Saturday night would have the right to pack a loaded gun. Moreover, I believe there is already a lawsuit filed in DC contending that the Second Amendment does and/or should protect a right to "bear arms." Are you claiming that the persons bringing this suit (whom I believe are the same persons who brought Heller) are not serious people?

Your comments in this thread reinforce my sense that some (though not all) who claim an affinity for the Second Amendment are truly just fair-weather gun friends. For the sake of those of who genuinely believe rights should mean something for everyone (and not just the popular), I hope such fair-weather friends will not spoil the Second Amendment for the rest of us.

Posted by: Doug B. | Nov 5, 2009 12:49:19 AM

Doug --

"Bill, as you should know, many gun advocates believe and contend that more gun = less crime."

I believe the argument you note is largely confined to the possession of guns in one's home.

"If true, we are not at risk of Dodge City but of greater peace and tranquility if everyone walking down the streets of Georgetown past midnight on a Saturday night would have the right to pack a loaded gun."

Too many of them already do, which is one reason I stay away from Georgetown on Saturday night. (Full disclosure: the more important reasons are that there's no place to park, and I'm too old to be trolling in Georgetown anyway).

"Moreover, I believe there is already a lawsuit filed in DC contending that the Second Amendment does and/or should protect a right to 'bear arms.' Are you claiming that the persons bringing this suit (whom I believe are the same persons who brought Heller) are not serious people?"

I'd have to know what their views of the West case in particular are in order to answer that. The right to "bear arms" is a broad phrase; I would need to know exactly what the factual context is.

"Your comments in this thread reinforce my sense that some (though not all) who claim an affinity for the Second Amendment are truly just fair-weather gun friends."

I don't view myself as a fair weather friend of the Second Amendment. I simply take the conventional position that Second Amendment rights, like all others, are not absolute, and are subject to reasonable regulation.

"For the sake of those of who genuinely believe rights should mean something for everyone (and not just the popular), I hope such fair-weather friends will not spoil the Second Amendment for the rest of us."

I assure you that I haven't the power to spoil the Second Amendment for you or anyone. And whether a group is "popular" is of no consequence to me. What I care about is whether the potential arms-bearing person is reasonably responsible and mature, not whether he's popular.

In the pre-Heller days, the great majority of liberals were not "fair weather friends" of gun rights, but outright enemies. Now in the post-Heller era, they are far more selective in their enthusiasm for the Second Amendment than am I: They are gung-ho to secure the right to bear arms for criminals and unstable people, but I swear I don't hear a peep out of them supporting the right of normal, law-abiding people to keep a pistol in the nightstand.


Posted by: Bill Otis | Nov 5, 2009 10:49:56 AM

Bill, I am surprised and disappointed by your obvious ignorance about the "more guns, less crime" research. The classic work here comes from John Lott, and he is focused on right to carry laws: http://www.press.uchicago.edu/presssite/metadata.epl?mode=synopsis&isbn=9780226493640

Your ignorance on this front confirms my instinct that you are not really a fan of gun rights in general, but just a fan of people you trust having rights (and then perhaps only in their homes). That's a common view, of course, but not one that I consider especially principled.

On another front, Bill, who are the purported liberals who you now see as "gung-ho to secure the right to bear arms for criminals and unstable people, but [not for] the right of normal, law-abiding people to keep a pistol in the nightstand"? I am still looking for modern liberals --- as opposed to libertarians or just defense attorneys representing particular clients --- who truly accept the outcome in Heller.

Posted by: Doug B. | Nov 5, 2009 2:28:37 PM

Doug --

You're a smart and generally moderate man, but your enthusiasm to arm dangerous people in the name of what certainly appears to be an absolutist view of the Second Amendment has led you astray.

Presumably, you believe that SOME regulation of the right to keep and bear arms is permissible. For example, I presume you would think it both consistent with the Second Amendment, and prudent policy, to forbid gun ownership to children and lunatics.

If I am right about that, then the only question is how far the regulation should go and what its specific content should be, not whether it may exist at all. In other words, our disagreement is about a matter of degree.

There were nine Justices in the Heller case. Four of them -- the ones with whom I believe you more often than not agree -- rejected ENTIRELY your view of the Second Amendment. The other five accepted it, as I do, but not in the absolutist form in which you now cast it. They stated, in dictum but without dissent, that the regulation of gun possession by criminals was permissible under their holding.

That I agree with this scarcely makes me the Bad Man you apparently, on this score, take me to be.

Posted by: Bill Otis | Nov 5, 2009 9:26:47 PM

I agree our disagreement is a matter of degree, but I am looking for a mostly principled application of the constitution, not merely a self-serving one. In addition, I also seek to have data, not supposition or personal bias, inform principled judgments.

Delonte West is neither a child nor a lunatic (nor obviously dangerous), just a person who apparently felt he needed to be armed for his own self protection. You claim to believe in the Second Amendment's right to keep and bear arms, but want to deny that right to Delonte West for no clear principled reason. Unless and until you provide some reasoning for this judgment, I think you are the Bad Man, since you lead me to fear that it is just your personal dislike for Delonte West that is the basis for your wanting to deny him rights.

Posted by: Doug B. | Nov 5, 2009 10:42:35 PM


Doug --

My view of the Second Amendment is more abstract than yours. I think Heller was correctly decided, and I have no problem with its dictum. (I also think the dictum is the one part of the majority opinion with which the dissenters would agree). If I am right about that, then I am as "unprincipled" as all nine Justices. Worse things have been said of me.

I have nothing against Delonte West. Indeed, before you posted about this case, I never heard of him. If he believes, for no rational reason that I've been told about, that he's in such danger driving around town that he needs a couple of loaded guns on him at all times, I think he's a little crazy. Don't you? It's no crime to be a little crazy, but it it does not create a high confidence level when contemplating what might set him off.

The regulation of Second Amendment rights is for the legislature to decide. Obviously it cannot regulate in a way that amounts to a wholesale abridgement of those rights, but within that limitation, it has broad power to adopt what it views as wise policy. In making such policy, the legislature is well positioned to gather the data of which you speak -- better positioned than either of us is.

As happens so often in the law, the question is not whether Position X is supported by a principled basis, but who gets to decide what COUNTS as a principled basis. The answer is that the legislature gets to decide. It has done so, and I'm not as willing as you sometimes seem to be to conclude that the legislature, or those (like me) who agree with it, has acted out of "supposition or personal bias."


Posted by: Bill Otis | Nov 6, 2009 1:08:33 PM

Bill, maybe Justice Scalia was crazy too, because Heller defined "bear arms", as it is used in the 2d Amendment, as to "wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person." 128 S.Ct. at 2793.

Now, the Court did not specifically say to "possess in one's motorcycle", but it certainly complated possessing a firearm while being prepared for whatever may be out to harm you. This sounds like what Delonte West was doing. He was "bearing arms" and was ready for defensive action in case he needed to be.

Posted by: C | Nov 6, 2009 4:42:06 PM

C --

"Now, the Court did not specifically say to 'possess in one's motorcycle,' but it certainly complated possessing a firearm while being prepared for whatever may be out to harm you. This sounds like what Delonte West was doing. He was 'bearing arms' and was ready for defensive action in case he needed to be."

He was also ready for offensive action in case he wanted to be. Non-paranoid people simply do not drive around the Beltway armed to the teeth.

All I can say is that your argument, or close variations of it, have been tried a few dozen times post-Heller, and have an overwhelmingly losing track record.

If you think it will succeed, in the Supreme Court or elsewhere, by all means have at it. But I'll bet you here and now that it won't get a single vote.


Posted by: Bill Otis | Nov 6, 2009 6:00:02 PM

C --

I take it that, under the definition of "bear arms" you quote from Justice Scalia, the recent events at Ft. Hood should be celebrated, as a constitutional matter, as a full-throated exercise of Major Hasan's Second Amendment rights.

If not, why not? Major Hasan had much better reason to believe that the Army was about to ship him off to a dangerous place (Iraq) than Delonte West had to believe that he was in any particular danger on the Beltway.

So I guess celebration is in order. Personally, I won't be joining it.

Posted by: Bill Otis | Nov 6, 2009 7:41:26 PM

Bill, that you are eager to equate Major Hasan's actions with Delonte West's actions suggests that your "abstract" view of the Second Amendment is one that only Bill Otis can understand. As is true of many (including some judges), you seem to adopt a view that rights are defined by as YOU want to define them, rather than based on some broader principle. Fine, but hard to justify to anyone who does not see the world just like Bill Otis.

Posted by: Doug B. | Nov 7, 2009 3:00:48 PM


Doug --

I must have missed the point at which I "equate[d]" Hasan's action's with West's.

What I did say is that, under C's understanding of Justice Scalia's Heller opinion, Hasan engaged in a full-throated exercise of his Second Amendment rights. You don't dispute that since it is, of course, indisputable.

My point in bringing up Hasan was to show that an UNFETTERED right to bear arms can be the first step down the road to dreadful consequences. And you don't dispute that either (all the while refusing even to acknowledge the Ft. Hood gun-happy massacre).

You are also mistaken in saying that my view of the Second Amendment is one that only I could understand. As I have said explicitly, I agree with the Heller majority, both its holding and its dictum. They represent perfectly my view of the Second Amendment. People may disagree with that view -- certainly you do, having been complaining about it for more than a year -- but to complain about it is hardly to establish that it's understandable only by me. Indeed, complaining about it implies that you DO understand it.

"As is true of many (including some judges), you seem to adopt a view that rights are defined by as YOU want to define them, rather than based on some broader principle."

Wrong again. I have already explained the broader principle, that being that Second Amendment rights, like others, are subject to regulation -- which you do not dispute -- and that within broad limits, said regulation is a matter for the legislature -- which you also do not dispute. I spelled it out right on this thread about 36 hours ago:

"The regulation of Second Amendment rights is for the legislature to decide. Obviously it cannot regulate in a way that amounts to a wholesale abridgement of those rights, but within that limitation, it has broad power to adopt what it views as wise policy. In making such policy, the legislature is well positioned to gather the data of which you speak -- better positioned than either of us is." ###

Since prohibitions like the one West is charged with violating come nowhere close to accomplishing a wholesale abolition of Second Amendment rights, they are, in my view, permissible.

It's ironic that you accuse me of Second Amendment solipsism when it is your view, not mine, that has been rejected in almost every post-Heller opinion. And it is less ironic than disappointing that you also accuse me of being unprincipled.

That kind of attack is all over the place among some commenters here, but it should not be in the arsenal of someone with your maturity and professional standing. This is not primarily because my supposedly unprincipled position has been a great deal more successful in courts across the country than your supposedly principled one. It's primarily because, even were it otherwise, calling your opponents unprincipled is unworthy and unproductive.

Do you not recognize that disagreeing with you can be the product of honest differences rather than moral failings? Are you so sure of your position that those who think otherwise -- including all nine Justices in the Heller case -- must be, not merely mistaken, but morally inferior?

When liberals were criticizing the past administration, they had a name for an attitude like that: hubris. With all respect, I have to wonder whether that's what's going on here.

Posted by: Bill Otis | Nov 8, 2009 12:04:35 AM

Bill, like the (sometimes unprincipled) Heller majority opinion and the (sometimes unprincipled) post-Heller lower court opinions you repeatedly stress, you have never explained in a principled fashion the relationship between the right to keep and bear arms and the right to personal self defense.

I do not mean to accuse you of anything, but rather seek to understand how those who believe in both a person RIGHT to bear arms and a RIGHT to personal self defense would not have sympathy for Delonte West's plight. I fear that you and other folks who purport to embrace a limited/regulated Second Amendment right will only approve of persons exercising rights in the way you find appealing. But, as I have stressed from the outset, courts are not needed to protect rights that are appealing to others, they are needed to protect rights that the majority finds unappealing.

I do not mean to be casting moral criticism and I am happy to be accused of hubris, but all the name calling concerns should not defect from my cental concern -- i.e., finding a PRINCIPLED understanding of when persons have a RIGHT to carry guns for self protection.

Posted by: Doug B. | Nov 8, 2009 11:18:17 AM

Doug --

I am more pro-gun than you think. Indeed, in the pre-Heller days, I got in trouble with the gun control crowd for arguing, in line with John Lott, that the outright proscription of guns was not merely unconstitutional, but very unwise. I would stress the case that occurred several years ago at a small law school in Gundy, Virginia.

In that epsiode, a disgruntled and probably deranged student went into the Dean's office and blew his head off. A student standing nearby, who also happened to be an off-duty policeman, went to his car, got his gun, aimed it at the shooter and told him to put down his weapon. He did so. This may well have saved many lives.

Had the campus been a gun-free zone, the good samaritan student could not have saved the day.

So I am not against gun rights, not at all, not as a constitutional matter and not as a policy matter. I just want to make sure that guns are not available to people who pose a realistic risk of taking a shot at me if they don't like the way I drive on the Beltway.

How much of a risk that is, specifically, and how that assessment squares with the Second Amendment, are questions about which reasonable minds can differ.

And with that, I will leave you with the last word. It is, after all, your blog, not mine, and I appreciate your tolerating my dissenting views here.

Posted by: Bill Otis | Nov 8, 2009 12:37:20 PM

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