December 18, 2012

IF CASS SUNSTEIN THINKS THAT WARREN BURGER WAS RIGHT ON THE SECOND AMENDMENT, then he also thinks that the Second Amendment protects the right to “State Armies.”

Don Kates and I explored what that might mean in the William & Mary Law Review some years ago. The consequences turn out to be rather more drastic than Burger’s Parade Magazine piece on the subject envisioned. Cass is a smart guy, but this isn’t his area, and it shows. However, ignorance aside it’s pretty much impossible to imagine him writing something like this about, say, Roe v. Wade. “Reasonable people can debate about what policies would actually work. That is a debate worth having. It is past time to stop using the Second Amendment itself as a loaded weapon, threatening elected representatives who ought to be doing their jobs.”