I chatted with Hugh Hewitt last Thursday about Harriet Miers nomination. More specifically I wanted to chat about Hugh's position that she is the "most pro-2nd amendment nominee in 40 years" which I also discussed in this post.
What follows in the extended entry is a transcript of that chat between myself, Hugh & John Caile from CCRN. Many thanks to Duane for sending me the audio. There's a lot to critique both in Hugh's statements & mine (especially what I should have said instead of what I did say) but I'll save that for a seperate post. Course feel free to leave any thoughts in the comments section.
HH: ...joining me from Colorado this evening. Hi Publicola
Pub: Hey. How ya doing Hugh
HH: Good. You have the floor
Pub: Alright. Well basically all we have to go on as far as Miers' pro-gun street cred is concerned is the one paragraph from an article she wrote in 1992 & the fact that she may or may not still own a gun as she did at one point. Now...
HH: And that the article occurred when it was very very difficult - the context in which to defend gun ownership because of the massacre right?
Pub: ah, quite possibly. I'm not too sure of all the details on the massacre. From what I've read it involved a shooting at a courthouse where two lawyers were killed; a judge & a prosecutor were wounded?
HH: Yeah. I mean massacre is a big term but when it was very...it would have been easy not to defend gun rights in such a situation. She did.
Pub: Yes it would but the thing that doesn't really convince me on this is not so much that it's not a good thing that she said - I mean undoubtably it is. It's a whole lot better than saying, you know, that we've got to get rid of them all right now. It's that that by itself doesn't really say too much. There are a lot of people who say that the 2nd amendment is an important thing but then they go on to qualify it. Like Ashcroft a few years ago when he said that the 2nd was an individual Right. Well everyone was, you know, all crazy about that thinking "hey - you know we're finally making some progress" but they failed to realize that he mentioned "subject to reasonable government restrictions" right after he said that, which - that kinda of gives it the same practical purpose as the opposition's opinion that it's not an individual Right. If you can restrict it for certain reasons then it just becomes a question of arguing what's reasonable or not.
HH: & the only person that - the only place to ever expand any sort of protections beyond the rule of reason - & arbitrary & capricious is a very low standard right Publicola? -Any state legislature can basically do anything they want with guns right now.
Pub: ah... more or less the...
HH: More or less under the existing law. If that's gonna change - if you want the 2nd amendment to be given a status as a fundamental Right - which I'm sure you do correct?
Pub: Yes
HH: Not just an individual but a fundamental Right. Right now...first part of the battle is getting it determined as an individual Right because if it's a collective Right it has no status whatsoever. The once it's an individual Right you wish to have it protected as a fundamental Right & thus subject to more searching scrutiny whenever a state imposes a restriction on that. Doesn't mean restrictions can't be imposed it just means they'd have to reach a higher level of scrutiny & a substantial relatedness to the end being requested. That would be a good thing in your view, right?
HH: Yes. &, you know, that would be a good approach to take if you were doing something like the NA- double ACP had to do back in the 30's. Basically, you know, create a Right where none existed before. Create the recognition of a Right where none existed before. But what we have now is a very plain document - you know the Constitution. The 2nd amendment's what - like 26, 27 words?
HH: But Publicola I know what we have now & I know how it's been interpreted as do you. The only way to change that interpretation is to change the united States Supreme Court.
Pub: Right. & you know I'm...Now don't get me wrong; I'm not saying that Miers is not pro-gun because of this. I'm just saying that her making that one statement in 92 is not really that conclusive.
HH: Well I'm just saying; a lot of gun activists disagree with you & you run a big risk if you're not on her side of getting someone in her place in the future who is not where you want her to be, or him to be.
Pub: I…
HH: I think caution this instance...you've got a very good indication - she's not going to answer anything more specifically than that. & so my recommendation to people who are serious about the 2nd amendment like you is get behind her in a hurry.
Pub: Well, you know, another thing that you've mentioned a couple of times is that gun ownership pretty much equates to being pro-2nd amendment.
HH: Yeah.
Pub: & - I gotta point this out - Diane Feinstein has one of the very few concealed carry permits in California;
HH: Well that again I...
Pub: Chuck Schumer has a gun
HH: I think you can find many many instances of hypocrisy, especially with high public profile - public figures - who have concealed carry weapons for their own personal protection. It's very very hypocritical. That however - that you have exceptions to a general rule does not mean the general rule is not true. I would think that if you lined up ten people & they're all gun owners that you're gonna find among those ten people nine or more who are pro-2nd amendment.
Pub: Possibly, but the exceptions...
HH: Now let me bring on John from Minneapolis. John How are ya?
John: Hey Hugh. How ya doing?
HH: Respond to your friend Publicola, another gun activist.
John: Well I just wanted to give you a compliment; you did a very good job considering you say that you're not necessarily a gun guy. You did a very good job of describing the basic situation as it exists today.
HH: Well yeah but I teach Con Law so I know...
John: There ya go
HH: I know...
John: Exactly
HH: I know...
John: Some people forget that the 2nd amendment is probably the best barometer of someone's approach to Constitutional law. &...most scholars today- the media doesn't really report this much but probably 80 to 90 percent of the scholars today, ya know, agree - no question it's an individual Right & that was what it was intended to be. You will still have however, you know, individual appellate courts who will approach it as if it is not. & the big issue that has never really been brought before a Supreme Court...& precisely because there's never been the confidence level to do so - is to bring a case that settles once & for all that it is A; an individual Right & B: that it is a fundamental Right ...& requires a much higher standard to be regulated by a state...
HH: Deserving of...
John: you know it...
HH: & let me explain standards of review for a moment John for the benefit of the audience. When for example a government - state local or national - uses race in any of its regulations that regulation is subject to strict scrutiny meaning it is almost always fatal - it almost always fails to pass strict scrutiny. There must be this compelling overwhelming argument why it must matter.
When a restriction is based upon gender it must pass intermediate scrutiny where it’s gotta have a substantial goal & the regulation must substantially advance towards that goal. I think gun owners are aiming for intermediate scrutiny not strict scrutiny cause strict scrutiny is simply never going to apply in the area of weaponry. & I think that would be enormous victory. Would it John?
John: I agree. Absolutely.
HH: & Publicola would that not be an enormous victory?
Pub: It would be better than what we have but I'm one of those absolutists who thinks that strict scrutiny should be applied.
HH: I understand that but ya know what - that would then apply to tanks right?
Pub: Ah, it all depends upon how you define arms. If you take what the...what the framers viewed as arms then there's some argument that shipboard munitions could be considered arms but most people would...
HH: Most Americans get heebee-jeebees about that...& so as a result I expect the court to follow the election returns & to eventually get to this intermediate scrutiny where most weaponry that most - the vast majority of Americans would ever want to own & to be able to conceal & carry as they want is in fact the law of the land. & John, do you see that promise in Harriet Miers?
John: Again I'm basing it strictly on the comment that someone who gets it right on the 2nd amendment - who expresses the belief that it is indeed an individual Right & if she would further express the belief that it is a fundamental Right - yeah I'd be comfortable with that. & I'd like one more on the court before I were to bring such a case to the court.
HH: Well...& by the way did you hear my conversation with Governor Pawlenty?
John: Only a little bit of it. I was going from car to car.
HH: Well you've got a vacancy on the Supreme Court in Minnesota.
John: Oh, I thought that was hysterically funny especially your comment about - I knew right away when you were coughing I was laughing hysterically in my car
HH: Well - what'd'ya mean laughing? I thought you'd be on the phone to him by now...
John: I thought it'd be a great idea. I knew exactly what you were doing...
HH: Yeah
John: Ahem. AHEM. Governor.
HH: Ya know...he didn't even know I was a lawyer so we're gonna give him a chance to catch up on the paper trail.
John: Yeah I was surprised at that. I was surprised. Ya know I think...
HH: We gotta tell him - University of Michigan graduate; Order of the Coif; D.C. Circuit...
John: I think it'd be great
HH: 20 years; Con law teacher for ten. I mean how hard can Minnesota law be?
John: Hey - the entertainment value alone would be worthwhile.
HH: You now it'll bring tourism to the state. Alright thank you two. It's always good to talk to ya. Have Gun Will Vote.com & Publicola.com