You and each of you have a Second Amendment right to shoot yourself in the foot

Like black helicopters sent from the UN, there are lots of things in the Constitution about which I pay little or no attention.  Most of the time, the Second Amendment is one of those provisions. Anyway, the verdict in the Florida case where Mr. Zimmerman was acquitted of murdering Mr. Martin with a concealed semiautomatic weapon got me thinking about the Second Amendment and guns.

A while back, one of the judicial security people suggested that I might consider carrying a weapon.  I can’t remember what I had done to piss off the wing nuts, but it was probably something to do with a decision allowing partial-birth abortion.  In any event,I declined the suggestion that I start packing, but I gave an honest explanation.

When I was a magistrate judge, I got to know a truly great drug cop in Omaha.  He was a helluva an investigator, and, on top of that, he ran one of the drug dogs.  The cop was also one of the funniest guys I ever knew.

One particular investigation took my friend and his fellow officers to Los Angeles to make some task force arrests regarding a  large drug trafficking operation that was using Omaha as a distribution point.  With his Omaha buddies, my friend, the cop, was armed with whatever sidearm he typically carried.  As these fellows were racing around L.A., they got into and out of their sedan on numerous occasions.  After one such stop, my friend was the last one back into the vehicle that was stuffed with other officers wearing their tactical gear.  He put his hand on his weapon to steady it as he jumped into the back seat.  At that point, the weapon discharged and put a fairly large hole in my friend’s foot.

Aside from the bureaucratic nightmare that was caused by the accidental shooting, my friend became the object of good-natured derision.  When he finally returned to work, wearing a large “boot,” he was confronted with a photo of his drug dog, blown up to a very large size.  As I remember it, the photo showed the dog using the phone while barking loudly, “Quick, send backup! My partner shot himself in the foot.”

With this experience forever emblazoned in my mind, I knew that there was no way I should start carrying a Nine.  I’d be lucky if the only thing I winged was foot.  In a similar vein, it is at least arguable that Mr. Zimmerman would have profited from this cautionary tale just as I did.  In my view, that is true even if the Second Amendment grants each of us the right to behave like a moronic Robocop from Detroit.

Just sayin’.


"Quick, send backup!  My partner shot himself in the foot."

“Quick, send backup! My partner shot himself in the foot.”

13 responses

  1. I have shot myself in the foot many, many times before the Court changed hundreds of years of 2 nd Amendment jurisprudence. 😃

  2. OK, Judge. I’ve looked for an email address for this site and can’t find anything. So, you’re forcing me to publish a comment. It’s out of place on this post (although trust me, I know plenty, believe me — plenty– on the sport of foot shooting. Just ask.). But I am going to put it here anyway. I know you’re bigger on rules than some of those legal realists, and I know the interpretative contest of “comment” is the post that it’s attached to, but I’ve read enough to expect that you’ll go light on this one.

    This is a great blog. Thanks from north of the border, for a wonderful couple of hours,for the comfort of having access to a great, new and unique ongoing judicial resource. And thanks for the ground-eye insight into something of Justice Scalia and Judge Posner, who, however understandable they may be in the lower forty-eight, get more than a little well, unusual, when viewed by someone from outside the US legal system.

    So, thanks for the shortened form of legal scholarship of the highest kind.

    Also I was going to use “peregrinations,” but skipped it for the better having had the chance to see Orwell’s comments below. See. You’re having an effect already.

  3. Dear “Do you really have to give my name?,”

    First, I am sorry this platform is not very user friendly when it comes to comments. The platform is great otherwise. I won’t give out your name or URL. Incidentally, the e-mail address is on this page.

    Second, you are too kind. We won’t invade. My son-in-law Karel is here as I write this. Since he is one extremely proud Canadian, my arrogant American tendencies have to be muted. How I hate that!

    Third,as for Scalia and Posner, they are strange ducks even here. Brilliant, but strange. I wish they would have spent far more time in the trenches, so to speak. Both of them are capable of building an atomic bomb, but neither one has a clue about the consequences of dropping it.

    All the best.


  4. Rich, actually, we still don’t have any definitive authority about whether the 2nd Amendment is “incorporated” through the 14th Amendment. The case involved a challenge to DC’s gun control law, which neatly avoided the “incorporation” question.

    Meanwhile, I have never fired a gun and hope to keep my perfect record in tact.

    I await an illuminating Supreme Court opinion as to why the 2nd Amendment is incorporated but the 7th Amendment is not.

    Your picky correspondent, Pat.

  5. Patrick,

    I believe there is such authority — the follow-up case of Mcdonald v. Chicago, 130 S. Ct. 3020 (2010). The Court concluded that the 2nd Amendment was incorporated.

  6. Jay, thanks. I must’ve missed that one. I’m sure it’s fascinating. I will read it. Even us law professors can’t keep up on all of the subjects outside our field. It’s part of what makes this such a great blog. Thanks, Pat.

  7. Jay, thanks again for the citation. I read the opinion, which holds exactly as you state. You may discount the following for the fact that I am personal friends with Justice Thomas and his lovely wife Ginni. Whether one likes his opinions or not, I believe that it is clear beyond peradventure that Justice Thomas writes the clearest opinions on the Court and is the most intellectually consistent.

  8. Great point. As I said, I seldom pay any attention to the Second Amendment, and now I have just proved my ignorance (although I doubt that was ever in much doubt). All the best.


  9. Pat,

    I don’t know the Justice nearly as well as you do. But, the few times I have spent some personal time with him left me with the impression that he would be a great friend–concerned about others, down to earth, funny, not full of himself and all the rest. As for who writes the clearest opinions, you may be right. Same same with consistency. I continue to think that Breyer writes the most simply, and that is a rare thing too.

    All the best.


  10. Pat,

    No problem. I don’t agree with everything J. Thomas writes, but I’ve always wanted to meet him (at least, more than I would particularly want to meet any other current SCOTUS Justice) as I grew up near Savannah and recognized a lot of places he mentioned in his memoirs, albeit a few decades later. From what I’ve heard he’s a very warm and friendly man in person.

  11. Years before the Heller case was litigated in the District of Columbia, I raised the Second Amendment issue in the District of Columbia Court of Appeals. That court held that the D.C. laws, including carrying a pistol without a license, do not violate the Second Amendment. Sandidge v. U.S., 520 A.2d 1057 (D.C. 1987). In concurrence, Judge Nebeker stated that the Second Amendment does not apply to the seat of national government, citing U.S. Const. art. 1, section 8, cl. 17. He noted that a federal militia is available in the District and the Second Amendment applied to state militias which could ensure the security of a free state.
    Elaine Mittleman

  12. Elaine,

    Thanks, indeed, for this interesting bit of information. In “flyover country,” we always knew there was something very different about D.C.

    All the best.


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