Trigger Warning: The referenced column is written by a left-wing whacko acting professor at the People’s Republic of Kommiefornia’s UC-Davis, and is published in The Atlantic.

I don’t know what constitution Aaron Tang — who purports to be a “Constitutional law & education law prof” — teaches, but he should bone up on the United States Constitution. If he taught anywhere but the University of California – Davis, I’d call that fraud. But he’s par for the anti-rights course there.

What If the Court Saw Other Rights as Generously as Gun Rights?
Both gun-rights advocates and educational equity activists use similar legal strategies. Why does the Supreme Court treat them so differently?

Probably because the right to keep and bear arms is specifically mentioned in the Second Amendment to the Constitution, and education is not. check for yourself; no mention of education, learn, teach, school, university, college, or anything else education-related. (While we do speak of an Electoral College, that term doesn’t actually appear in the Constitution; only “electors.”)

If the courts treated education the same “generous” way they do Second Amendment rights, you might need a license to go to school, minors wouldn’t be allowed to go to school, you’d need to pass a background check before every class, you might be allowed one class per month, and you’d be limited to a low-capacity tenth grade education. The Department of Education could arbitrarily ban knowledge of algebra and imprison you for knowing it. You might be allowed to go to college, but only after paying $200 for the permission slip that would come eight or nine months later, and local law enforcement would be informed. Depending on your major, even with the permission slip you would not be allowed to attend a college or university established after 1986.

Spearheaded by new leadership at the NRA in the late 1970s, gun-rights activists engaged for decades in an effort to persuade the Supreme Court to recognize an individual Second Amendment right to bear arms for self-defense at home. The Court ultimately enshrined that right 12 years ago in D.C. v. Heller, displacing a long-standing consensus to the contrary.

Tang clearly didn’t read Heller, or he’d have seen Scalia’s many, many citations of Supreme Court cases, law, and history supporting the individual right. The Supreme Court has been recognizing an individual right of the people since at least 1857.

At first glance, the gun-rights movement and the pursuit of educational equity seem to have little in common. But they in fact share an approach: Both promote arguments that rely on what are called “implied” or “unenumerated” constitutional rights.

Oh, really?

Article II: A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.

Article II, Two, 2. Numeral. Enumerated.

The argument for a constitutional right to train at any shooting range is far from obvious. The Second Amendment speaks of a right to “keep” and “bear” arms, but says nothing about a right to train or practice.

I’ll grant that the words “train” and “practice” don’t appear, but please note that “well regulated Militia.” What did “regulate” mean when that was written?

regulate: 1. to adjust by rule or method 2. to direct

What the heck kind of well regulated, ordered, prepared, methodical militia is untrained, unpracticed? Certainly not the sort specified by the Second Militia Act of 1792 which required militia members (each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years) to arm themselves with militarily suitable firearms and equipment.

That every citizen so enrolled and notified, shall, within six months thereafter,How to be armed and accoutred. provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Further note that government officials and employees were not included in the militia; dispensing with the common violence-enabling victim-disarmer argument that the militia is the army and national guard (a point the Supreme Court noted in 1990, which for numerically-challenged people like Tang is many years before Heller).

But see that “exercise”? That isn’t talking about jumping jacks and sit-ups. A /militia/military exercise is training and practice.

And just in case Tang is as hazy on law as he is the Constitution, the militia is still codified in 10 U.S. Code § 246. Militia: composition and classe. And yes, government officials and employees are still exempted.

Aaron Tang is clearly at UC-Davis because the heads of every other law school in the country were smart enough not to hire the ignoramus.

[Permission to republish this article is granted so long as it is not edited, and the author and The Zelman Partisans are credited.]