As we've highlighted, the dangerous effort to weaken critical patent protections for U.S. pharmaceutical…
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Image of the Day: Private Sector Pharmaceutical Investment Propels Innovation

As we've highlighted, the dangerous effort to weaken critical patent protections for U.S. pharmaceutical innovators often minimizes the role of private investment and exaggerates the role of public funding.  This offers a critical corrective at a moment when American drug and vaccine innovation is more important than ever:

[caption id="" align="aligncenter" width="530"] The Critical Role of Private Pharmaceutical Investment[/caption]…[more]

May 14, 2021 • 09:16 AM

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Warren Burger Meme Bungles 2nd Amendment Print
By Timothy H. Lee
Thursday, September 26 2019
Instead of reviving obscure, decades-old quotations from a retired Chief Justice who never actually participated in a significant Second Amendment case during his tenure, anyone engaging in the Second Amendment debate should simply read the Heller majority opinion to understand the constitutional and historical realities.

A fatuous new meme has gained sudden social media popularity among gun-grabbers in their ongoing campaign to render the Second Amendment meaningless.  

The meme features a portrait of former Chief Justice of the United States Warren Burger, alongside a 1990 quote that somehow sprang to life after thirty years of dormancy. 

The backstory is that Burger wrote a pop interest piece for Parade Magazine on January 14, 1990, employing surprisingly intemperate language to air his personal opinion about the Second Amendment: 

The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime.  The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state.  The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. 

That reflects poorly upon an otherwise respectable retired Chief Justice, and it’s intellectually defective for multiple reasons. 

First, it must be noted that Burger had retired four years earlier, after serving on the Supreme Court since his nomination by President Richard Nixon in 1969.  At no point during his tenure did the Supreme Court address the question of whether the Second Amendment confers an individual or collective right.  That wouldn’t occur for another 18 years, when the Supreme Court ruled in the seminal District of Columbia v. Heller case. 

Second, Burger attempts a curiously defective textual argument when he references “the very language of the Second Amendment” in his piece.  Yet he conspicuously ignores the most pivotal “language of the Second Amendment,” which specifies “the right of the people to keep and bear Arms.” 

Here’s why that’s a critical error. 

The term “the people” is employed multiple times in the text of the Bill of Rights, and each time it protects an individual right, not some mythical collective right.  For example, it’s facially absurd to suggest that the First Amendment somehow protects the rights of a collective or government entity, or that the Fourth Amendment protects some collective or government entity against unreasonable searches and seizures.  Yet Burger and other Second Amendment restrictionists ask us to accept that the Second Amendment somehow stands unique as a sole exception? 

Indeed, the Tenth Amendment specifically and separately distinguishes between states and “the people” in its text when it references “to the States respectively, or to the people.”  Thus, the Framers were perfectly capable of referring to state authorities when they so chose, and could have done so in the Second Amendment if that’s what they intended. 

That’s not Burger’s only error in interpreting “the very language of the Second Amendment,” however.  Had the Supreme Court actually taken a case interpreting the Second Amendment as the Court did in 2008, he might’ve had the opportunity to understand as the Heller majority did that the term “militia” at the time of ratification referred to all able-bodied men, not some hypothetical “state army” that he references. 

Burger then descends to straw man argumentation when he asserts that the Second Amendment wasn’t “intended to guarantee every citizen an unfettered right to avoid any kind of weapon he or she desires.” 

Which pro-Second Amendment scholar has ever advanced such a claim? 

As the Heller majority explicitly stated, the fact that the Second Amendment protects an individual right to keep and bear arms doesn’t mean that no restrictions are permissible.  To illustrate by analogy, the First Amendment protects an individual right to free speech, but that doesn’t mean that defamation laws are unconstitutional.  Similarly, the Fourth Amendment protects an individual right against unreasonable searches and seizures, but that doesn’t mean that warrant exceptions are unconstitutional. 

Accordingly, the fact that some restrictions withstand constitutional scrutiny doesn’t in any way undermine the fact that the Second Amendment protects an individual right, not some hypothetical collective right. 

Finally, there’s an amusing paradox and glaring intellectual inconsistency among Second Amendment restrictionists who assert the discredited “collective right” argument that Burger stated. 

Namely, on the one hand they seek to outlaw so-called “assault” weapons and “military-grade” firearms.  Yet on the other hand they claim that the Second Amendment was ratified to protect only “state armies” in Burger’s words.  But taking that argument to its logical end, “assault” weapons and “military-grade” firearms would be precisely the ones most protected by the Second Amendment, since they’d be precisely the types of weapons useful to those hypothetical “state armies.” 

They’ve got to pick one argument or the other. 

Instead of reviving obscure, decades-old quotations from a retired Chief Justice who never actually participated in a significant Second Amendment case during his tenure, anyone engaging in the Second Amendment debate should simply read the Heller majority opinion to understand the constitutional and historical realities. 

It’s unfortunate that Burger chose to opine in such a careless, conclusory manner in an offhand pop-culture Parade Magazine piece.  But fortunately, a more informed opinion prevailed when the Supreme Court finally settled the matter in Heller.  

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