Dell's Original Uncoverage Logo by Antonio F. Branco, Comically Incorrect

Tuesday, December 20, 2011

Second Amendment Penumbras - Observations By Professor Glenn Reynolds

Second Amendment Penumbras

Observations By Professor Glenn Reynolds

By Dell Hill

You’ve seen reference here to the “Instapundit” blog site several times.  That blog is written by Glenn Reynolds - commonly known as “The Blogfather”.  Mr. Reynolds isn’t just another writer who decided it would be fun to take up blogging.  He’s a professor at the University of Tennessee College of Law.  And to give you an idea of why he’s so highly respected, check out his latest research paper, the subject matter of which is of great importance to all freedom loving Americans.
“GUN LAW NIGHTMARE: Tea Party Leader’s Gun Arrest Highlights Tyranny of Law. “Tea Party Patriots co-founder Mark Meckler was arrested on a firearms violation for declaring a locked, cased, unloaded gun at LaGuardia.  Don’t you feel safer?”  It’s clear that he did nothing actually wrong, but gun laws are full of traps for the unwary and — although violation is mere malum prohibitum — are often enforced more stringently than laws banning behavior that is actually wrong.  Back when the Second Amendment right to arms wasn’t recognized, you could perhaps justify an in terrorem approach where traps for the unwary were seen by law enforcement as features, not bugs.  (Though even there I believe there were due process issues that weren’t properly aired.)  But once you recognize a right to arms, the whole chilling-effect approach is weak.

This is a topic I discuss in my Second Amendment Penumbras piece, forthcoming in the Southern California Law Review. I also note that a patchwork of confusing (often even to law enforcement) and overlapping laws regulating the exercise of a fundamental right is a burden on the constitutionally recognized right to interstate travel. At the very least, they should warn you when you’re entering a repressive regime.

And here’s a guy with some related thoughts on gun control and mens rea.

“Second Amendment Penumbras: Some Preliminary Observations

Glenn Harlan Reynolds

University of Tennessee College of Law

August 14, 2011

University of Tennessee Legal Studies Research Paper No. 162

With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights of an enforceable right to arms.

Number of Pages in PDF File: 17”

Dell’s Bottom Line:  To download the pdf format file, click on either of the links above.


  1. Hey Dell, came across this article today, thought I would share, see what you thought:

  2. And Anon, I thank you for the suggestion.

    I saw this piece when it first appeared in publication and - having a lengthy law enforcement background - was immediately skeptical.

    My skepticism is centered on the suggested actions of the FBI agents during what was said to be a sting operation. I've been involved in sting operations and find it difficult to believe the FBI would go so far as to actually supply real explosive materials to their targeted individuals and then walk away, leaving those explosives unattened.

    In major sting operations, as soon as a motive and intent is sufficiently established, law enforcement almost always moves in to make arrests. This is pre-emptive action and the charges are for "attempting" to commit a heinous crime, the penalty for which is always the same as the completed act.

    This reported case goes far beyond that point and - after reading it closely several times - a yellow, caution, flag goes up. I'm not saying it's untrue, but there are a number of questions raised for which no answers are offered.

    This is the type of report that deserves its own posting, complete with a variety of opinions on the subject - not just mine.

    I'll continue to monitor and follow up if the situation warrants.