Law Professor Claims Second Amendment Irrelevant to Gun Debate

By David Codrea

Americans with “in common use at the time” infantry weapons resisting government tyranny? What does that have to do with the Second Amendment? (Don Troiani – National Park Service)
David Codrea in his natural habitat.

USA – -(Ammoland.com)- “[O]ne of the persistent and puzzling aspects of the politics of guns in this country is the insistence by ‘gun rights’ advocates on invoking the Second Amendment as a magical talisman, seeking to shut down all talk of gun control by asserting that such laws would violate the Constitution,” Neil H. Buchanan writes on Justia. The guy’s a Professor of Law at a university servicing establishment elites, so it’s probably safe to assume his “magical” misdirection and definition of “shall not be infringed” will accommodate all kinds of nuances, deviations and contortions that mere readers of plain English will miss.

“Substantial numbers of constitutional scholars … believe that the Supreme Court’s 5-4 decision was wrong … and I am among the dissenters as well,” he discloses to no one’s surprise. “Even so, the Constitution has never been interpreted in a way that would give people the right to have firearms in their possession anywhere they want and for whatever reason they want.”

First of all, the Bill of Rights “gives” nothing. You’d think a self-styled leading legal luminary would grok what the Supreme Court has articulated—and repeated—on that matter, especially since he’s the one who brought up Heller:

“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence…”

“[T]he Second Amendment is simply not relevant to the US gun debate,” Buchanan assures us. “None of the proposals to limit gun purchases, to limit (or even ban) carrying weapons in public, to require background checks, to forbid gun ownership by domestic abusers, to limit magazine capacities, or any other proposal on the horizon even comes close to bumping up against the Second Amendment.”

You'd think he'd have a better argument than Julianne Moore. Still, I’m reminded of the “God said it, I believe it, that settles it” bumper sticker. Substitute “Neil Buchanan” and we can put all this stiff-necked unpleasantness behind us.

A not insignificant minority…

Except we can’t, because insisting that bans have no bearing on the Second Amendment is just not true, and again, a “Professor of Law” would know that. He’d know about the Miller opinion (right there on Justia!), when the court had no evidence possession of a short-barrel shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

That’s a key point he’s ignoring. The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was—and is—to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. The militia assembled with the intent to match and best a professional military threat.

Such citizens have never been a majority, which is what seems to have set Buchanan off (this time), with his epiphany that gun owners are a minority (and it’s ironic that he seems to be fixated on “Three Percent”). Good thing for us we have a “Professor of Law” instructing us how such minorities evidently don’t count against majority rule.

Besides, there’s no precedent, he maintains. And what did the Borg say? Resistance is futile!

“Although the Supreme Court has never credited the ‘citizen uprising; theory of the Second Amendment, there are plenty of people who think that their arsenals are a bulwark against a tyrannical government,” Buchanan continues. “How they think they would win against the weaponry of the modern military is anyone’s guess, of course, but that is beside the point here.”

Story considered armed citizens a check against tyranny.

No, that kind of is the point, especially for a nation forged from armed rebellion that acknowledges there exist “enemies, foreign and domestic.” At least it was for Former Associate Justice of the Supreme Court Joseph Story, who noted in his Commentaries on the Constitution:

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

As for not having a prayer against “weaponry of a modern military,” the type of situation Buchanan’s ultimately implying means people are going to take sides, and it’s not like the ranks are heavy on sons and daughters of “progressive” academics. It’s also not like there aren’t plenty of other factors he has offhandedly dismissed. Without getting into all that here (although it is a subject worthy of much further discussion), suffice it to say that just as arms in private hands can deter individual aggression, so too does that work on a societal level.

There yet remain undelegated powers those who covet them dare not attempt to claim. And that means the Second Amendment is doing its job. And that is what those who would eviscerate it keep bumping up against.

We will not disarm.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.

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James A. "Jim" FarmerVE Veteran - Old Man's ClubJRMjim smithJoeUSooner Recent comment authors
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James A. "Jim" Farmer
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James A. "Jim" Farmer

Klamath Falls Herald and News: Sunday, October 22, 2017 Letters To The Editor ‘Gun violence’ a term that means nothing With total contempt I read Daniel Hernandez’s Oct. 8 elitist anti-gun “LBJ/KGB” style commentary: “For gun reform, thoughts and prayers don’t work-laws do.” The distorted term “gun violence” was pontificated six times! Comrade V.I. Lenin and Leon Trotsky would have called this writer a “useful idiot.” With the recent horrific Oct. 1 massacre of 59 innocent bystanders in Las Vegas, by a deranged and depraved sociopath, the anti-gun elite in both house of Congress in Washington, D.C. (mostly deluded Democrats,… Read more »

VE Veteran - Old Man's Club
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VE Veteran - Old Man's Club

The Founders took their ideals on what the purpose of government is from this treatise – “The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power… Read more »

JRM
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JRM

All those people that don’t want to disarm the citizen’s sure do spend a lot of time and wind trying to convince everyone they’d be better off disarmed. Hmmm. Are they planning something if they succeed?

jim smith
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jim smith

Re: “the Constitution has never been interpreted in a way that would give people the right to have firearms in their possession anywhere they want and for whatever reason they want” The purpose of the Second Amendment is clearly stated in the preamble to the Bill of Rights – specifically “The convention of a number of states having at the time of their adopting of the Constitution, expressed a desire, in order to prevent misconstruction or abuse, of its powers that further declaratory and restrictive clauses should be added”. Note that when the Second Amendment was written, every weapon was… Read more »

Kevin Donohue
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Kevin Donohue

Why is it that when these educated elitists and their party representatives “win” a SCOTUS case they immediately proclaim “we are a people of law, and the court has spoken”, but when they lose they chastise the court and Justices as being wrong and how WE must change this ruling? Despite what happened last November (THANK GOD) they just don’t get/understand/comprehend that the country does not revolve around the left coast or northeast.

Macofjack
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Macofjack

@Tim – I think the entire saying is:
Those who can Do,
Those that can’t do…Teach!

Good to a point, but someone has to teach. The trick is to not let personal opinions get into your teaching!

explainist
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explainist

“Those who can, Do
Those that can’t…Teach!”

Those who say this can’t teach. You can’t know how hard it is to do it until you have done it a hundred times; you can’t know how hard it is to do it well until you have done it well a hundred times. If someone you know makes it look easy, he has done it well for a very long time.

Tim
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Tim

There is an old saying…
Those that can’t do…Teach
I think if a lawyer or a professor has an anti or pro stance, he should recuse himself which makes him irrelevant

Don
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Don

The Second Amendment has been a thorn in the side of the liberal intelligentsia for a long time now. Frustrated and running out of arguments, they jump the shark and claim the Second Amendment has nothing to do with their gun control positions. How convenient to just pretend that this bulwark of freedom from tyranny is irrelevant to the discussion. Their arguments were never based on logical fact anyway.

oldvet
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oldvet

Gil , xx, & Darren must be putting in their time today. nothing is refreshing today, same comments have been up all day .

Darren
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Darren

Old Vet, That’s to make sure you get the message 🙂

Moderators might be approving comments before they post causing a delay.

Macofjack
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Macofjack

I think lawyers should be made irrelevant to the gun debate, and for that matter to anything having do do with constitutional law!

James Higginbotham
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James Higginbotham

i think LAWYERS SHOULD BE IRRELEVANT ANY WAY.
with all their LEGALISE BS.

JoeUSooner
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JoeUSooner

As much as I dislike lawyers myself, I must caution you. Be very careful here…

Long ago, Sir Thomas More warned that laws and lawyers actually are necessary.

If you chase the devil [or your personal hated demon] through the forest, and you are willing to cut down all the trees in the process… when all the trees are gone – and when the demon turns on you and charges – where will you hide?

Vanns40
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Vanns40

Not quite sure what’s going on with the Ammoland software but this will be the THIRD comment I’ve made on topics today. If it makes it, it’ll be the very first one published.

oldvet
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oldvet

Why is it that at least one part of Hollywood is ignored ? ie. the westerns say the magnificent 7, fist full of dollars, etc. John Wayne, Clint Eastwood, Chuck Norris , etc. Where the common theme is the poor unarmed populous at mercy of the bad guys with guns. Then along come the good guys with guns and all ends happily ever after . Or were they all made in Italy?

A.X. Perez
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A.X. Perez

Re popular armed uprising against against corrupt gov’t: look up Battle of Athens (aka McMinn county War).

Nomen Ignotus
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Nomen Ignotus

A couple of things : Militia is defined as “all able bodied persons ..” that is from the Illinois Constitution and similar in most other States) The “militia ” is the “People ” . “Well regulated ” at the time of the Constitution and the Bill of Rights ” meant ” supplied ” regulation having a somewhat different definition at that time . Also …the Constitution itself defines “Rights” as inherent in the People and not being granted to the People by the government as per the 9th Amendment which states “The enumeration on the Constitution of certain Rights shall… Read more »

Woody W Woodward
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Woody W Woodward

Neil Buchanan, law professor,has been and will continue to churn out hordes of fresh faced, briefcase toting, lawyers who know nothing about OUR Constitution other than what he force feeds them in his lectures. That is to say, they enter his classroom knowing nothing and exit still knowing nothing. These students will, for the most part, never again have occasion to consider OUR Constitution except to cherry pick favourite passages – – in the mode of an old hell fire and brimstone preacher – – that they will use to shout down opposition. Many of the young lawyers will find… Read more »

joe kelley
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joe kelley

Just because he has some LETTERS after his name means nothing. The second amendment was written so a 5th grader could understand it. We know what it means and we will continue to fight for that meaning, just as those before us did. Some of them died for it and some of us will too.

Samuel Stephens
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Samuel Stephens

Another educated IDIOT trying to say something but nothing comes out that shows intelligence, sounds like a DemocRATic politician, the lips are moving nothing is coming out except lies.

justavet
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justavet

MOLON LABE bitch!

tomcat
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tomcat

Isn’t it enlightening to finally realize that college professors are not the best informed spokes people for the whole country to listen to and take their spouting as the gospel. They are no different than us but with a lot less life experience because they spend their time inside the hollowed halls of the college preaching their slanted views on a group of students who, many of them, swallow what the prof. says without questioning any of it. This is a very sad state of affairs and they turn out more libs every year. I don’t have an answer for… Read more »

PASTORGLOCK
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PASTORGLOCK

Then i guess the 1A doesn’t give/ protect the right to protest against the President ?

JoeUSooner
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JoeUSooner

To PEACEFULLY protest, yes indeed! To riot? Not so much…
Learn the damnable difference!!!!

Wild Bill
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Wild Bill

One need not be a professor of law to get the answer so wrong. A six year old Beagle could do as poor a job.

Tionico
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Tionico

except that said beagle would get it right half the time.

Tionico
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Tionico

Ah, but there is one signficant difference. Said beagle would get it right half the time.

Wild Bill
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Wild Bill

@Tio N, Yep, even a obedience school flunk out has a fifty-fifty chance of being correct, as opposed to Kneel Pukein, professor of lies.

Bob M.
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Bob M.

In a way Buchanan is right. The constitution is irrelevant as one’s right to self defense need not be codified by The State to be law. The problem again with people like Codrea is that they are binary Statists: Democrat/Republican, Legislation/No Legislation. Although you may think that Codrea gets it, he doesn’t. He mistakes legislation for law and can’t see freedom existing without the central state…which BTW “The State” and “Freedom” are mutually exclusive entities. “We will not disarm.” is a strong statement from a fellow who sees the State as the final arbiter of whether you can make a… Read more »

Vanns40
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Vanns40

And the main problem with your entire statement is that you “assume” you know how David feels and how he would react. You do not. I know David and he would not obey an unConstitutional, illegal law. “We will not disarm” is a perfectly logical statement and a perfectly logical stance for anyone who does not care to be further under the control of a liberal agenda. The only reason for disarming the law abiding is to further control them. It’s been shown, through the decades, that 1. A disarmed people are far more subservient to those who would be… Read more »

Wild Bill
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Wild Bill

@Bob M, The Constitution’s Bill of Rights, generally, and the Second Amendment, specifically, provides enumerations and definition to our God given, natural rights that would otherwise be lacking. If our natural and God given right to self defense remained undefined, future generations might forget the broad mets and bounds of those rights or that those rights even existed. It was prescient that our Civil Rights were recorded, defined, and enumerated.

Chuckbone56
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Chuckbone56

BobM., The state exists to protect the citizen through its constitutionally enumerated powers and duties. The citizen is resposible for keeping the state bound to those powers and duties. Any deviation by the state towards tyranny must always be kept in check by an armed citizenry. Without laws, anarchy reigns. Without vigilence by the citizen the state reigns through tyranny. Its pretty simple in theory but only works if the citizen has power over the state. I doubt Mr Codrea would turn anything towards a tyrannical state except the business end of his weapon.

Pistol Packin Preacher
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Pistol Packin Preacher

@WB Amen brother. I don’t even claim to know near as much law as you guys nor do I claim to know what all Mr. Codrea is even saying. I respect him very highly. I just want to reiterate your statement about our God given rights. The government of the USA did not give us these rights. God gave us these rights. If the USA gave us these rights then they could be taken away. Our government has been set up on the facts of Gods rule of law. Yes, it is being challenged and we must make and sometimes… Read more »

Wild Bill
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Wild Bill

Hey, PPP, long time no hear from. We were worried about you. Penelope, the legal beagle is my word smith.

Pistol Packin Preacher
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Pistol Packin Preacher

@WB Amen and Amen!!! The Lord Jehovah gave us these inalienable rights first and our constitution agreed with these rights. God gave not our government. Our government had the wisdom to build upon Gods rule of law. This is important because these rights cannot be revoked by any government unles we the people relent. Our country has a mandate by God to stand upon what is right. Thanks again WB for your stand and intelligence and vigilance. God bless.

JS
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JS

The challenge is their arguments are not logical (I know law isn’t logical. its law). By his reasoning you could discriminate against people of color or religion or restrict what people can say prohibiting any dissent of the government. Those very same restrictions are embodied in the very same Constitution and Bill of Rights. These people constantly take just the 2A and then ignore the other amendments and actually then use them against people who still support the 2A. Now there are bans on wearing firearms on shirts to schools, or other sensitive places, or talking about it openly. I… Read more »

joe martin
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joe martin

These days a “Professor” is not something to automatically assume is an educated individual deserving attention or respect. A lawyer? Need I say more? Combine the two and you have something almost laughable that should be ignored any time it puts pen to paper or opens its mouth. Always consider the source of anything you hear or read and this “law professor’s” comments are about as important and relevant as the braying of any other jackass.

jlarson41
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jlarson41

I guess he is so busy teaching lawyering he hasn’t had time to read about the primitive militias and other groups around the world holding their own against modern armies. In most cases it is lack of numbers rather than superior firepower that determines the outcome.

Steve
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Steve

Exactly. Mr. Buchanan conveniently forgets how a few years ago one kook with a rifle had half of the Pennsylvania State police pinned down in the Pocono mountains for months.

CORY W SCHOBER
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CORY W SCHOBER

Except the govt lied about short barreled shotguns as all ww1 and ww2 trench shotguns had 14 inch barrels

Roy F. Wilt
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Roy F. Wilt

This Man doesn’t Understand that the Bill of Rights do not give us anything! GOD did that! The Bill of Rights tell the Government that they can’t touch it! The Second Amendment says that we will KILL anyone who tries to take them! Wake Up Fools!

Mark Are
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Mark Are

Oh, and one other thing, Mr. know-it-all “law” professor…did you ever hear of the .45 liberator? Heck all it takes is some gonads and one can obtain an F16 fighter jet if they know how to fly it. And I bet there a lots of us out here that are no longer in the Air Force that can.

Mark Are
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Mark Are

That’s what happens when “law professor” degrees start getting handed out in Cracker Jack boxes.

JoeUSooner
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JoeUSooner

Or, like this cuckoo-clock’s diploma, printed in the back of a convenience store… cost him $0.25 for the copy paper.

JohnBored
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JohnBored

This clown reminds me of another Buchanan, James Buchanan the 15th president who gave us the Civil War. So he and other attorneys disagree with the Heller decision. Tough. The Court is the final word on the 2nd Amendment, which was a correct decision. The Court has had many bad decisions such as, Roe V. Wade, prayer in school, same sex marriage, Plessy V. Ferguson, and Dred Scot, to name a few. It took a civil war to overturn Dred Scot and the civil rights movement to overturn Plessy. Only a constitutional amendment can overturn the first three. Oh, but… Read more »

Chris Mallory
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Chris Mallory

Lincoln is the one who gave us the War of Yankee Aggression. There was no war until Lincoln invaded the sovereign nation of the Confederate States of America.

Mickt
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Mickt

WE are the final word on the second amendment!

Wild Bill
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Wild Bill

Neil H. Buchanan… his name should be Kneel Buck-and-Wing. Tap dancing for his wealthy freedom thieving elites. There is no profit in letting us be a free people.

Jim Macklin
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Jim Macklin

In the Dred Scott decision Chief Justice Taney described the rights of citizenship and then denied that black people could be citizens. The right to keep and carry arms where ever they went was how Taney described teh right to keep and bear arms, including teh right to cross state lines bearing arms. If you look back to 1788 te new Constitution provided for the Militia in Article 1, Section 8. That was not seen as adequate protection for the rights of the individual. In the Lopez case teh Court said the the term “the People” was a term of… Read more »

Darren
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Darren

The 2A protection of the individual’s RKBA serves a specific purpose, to have militias instead of standing forces. In this both the left & conservatives misinterpret the 2A. Yes, it protects the individual’s right to any & all kinds of weapons. Yes, it’s meant to protect the militia. The 2 go hand in hand. What’s not widely discussed is the fact that the Founders were leery of the govt having standing forces at its disposal. The militia exists to prevent, IE to make unnecessary, standing forces. Consider this from Elbridge Gerry discussing the 2A: “What, sir, is the use of… Read more »

EAM
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EAM

It’s truly amazing these days to watch the leftists go through all the gyrations to create an argument that gun ownership is NOT, and healthcare, birth control, and illegal residency ARE rights provided to us by the constitution. The right to bear arms, and strong reasons to do so, are enumerated right there in the second amendment, yet buffoons – even highly educated ones that are now teaching our children – will argue it’s not a right. Conversely, they will turn around and use vague language like the two words, “general welfare” as grounds for free healthcare, paying for birth… Read more »

VE Veteran - Old Man's Club
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VE Veteran - Old Man's Club

Another Brofessor, who is a liberal Brotatoe Chip acting like he’s the ultimate authority and arbiter of the 2nd Amendment’s meaning. I guess they can’t figure out that We the People will never cave in to their line of Bull Puckey no matter how many law degrees they have hanging on their wall. All those degrees mean is that they learned someone else’s opinions and adopted them, not studying the true intent of the Founders which is out there in their original writings. What this clown needs is an enema and then to be shipped off to live in some… Read more »