Tag Archives: Eugene Milhizer

Guns and the Second Amendment

Dean Eugene Milhizer contents that the right to bear arms is a natural right . . .

Eugene Milhizer

Eugene Milhizer

In the last six months the U.S. has been rocked by two intentional, violent body blows: the Newtown shootings and the Boston Marathon bombings.

Both events are complicated and in many ways unrelated and distinct from each other. But considering them together is useful to understand and define the range and limits of Second Amendment protections.

In the 2008 landmark decision Heller v. District of Columbia, the U.S. Supreme Court determined unambiguously for the first time that the Second Amendment protects an individual’s right to keep and bear arms. The Court traced the right to the English common law.

Of course, both firearms and bombs were well known to the British and the American colonists before and during the Revolutionary War. As recent events too well demonstrate, both are potentially dangerous and can serve as an effective means of causing serious and widespread violence. And both conceivably could be subject to restrictive government regulation approaching prohibition. Why then do the Constitution and its precursor common law protect gun ownership but not bomb ownership? The answer involves the imperative of protecting natural rights that were recognized under common law and later enshrined in the Second Amendment.

The Heller Court, quoting Sir William Blackstone’s authoritative 18th-century treatise on England’s common law, referred to a “natural right of resistance and self-preservation” that predates the Constitution. These rights were well established under common law and were a proximate source of Second Amendment protections.

But while the common law is the proximate source of the defensive rights protected by the Second Amendment, the natural law is the ultimate source of right as recognized by both the common law and the Constitution. The natural law includes a natural right of self-preservation and defense. This is basic. As a natural right, a right to self-defense is inalienable. It can neither be bestowed by the government nor can it be ceded to it. This is because these rights are integral to a person’s dignity. It’s hardwired into our psyche.

While one can imagine scenarios in which a bomb is used in self-defense, common sense and tradition instruct that such instruments are inherently offensive. In contrast, firearms have been regularly and traditionally been used in self-defense ever since the invention of the flintlock. The Second Amendment’s protection of a natural right to self-defense thus helps define the range of instrumentalities that are afforded its protection.

The constitutional distinction between offensive and defensive instrumentalities is critical for contemporary purposes. Many dangerous things can be intensely regulated without violating the Second Amendment, such as explosives, poisons and modes of conveyance. So can mountain climbing and bungee jumping. The regulation of such products and activities presents pragmatic and prudential questions, not constitutional issues.

Firearms, the quintessential means of effective self-defense from colonial times to the present day, are different in kind. The government may of course regulate them, but not in a manner that unduly burdens the Second Amendment’s recognition and protection of the underlying natural right of self-defense.

In a civil society the exercise of natural rights and constitutional protections are not absolute. This is especially true in modern times with all of its complexities and interdependence. The government may regulate the unbridled exercise of one right when it would unduly infringe upon the natural and constitutional rights of others. For example, freedom of religion cannot shield human sacrifice, nor can freedom of speech excuse shouting “fire!” in a crowded theater.

The respectful interplay of protected liberties is among the objectives the Framers addressed when crafting the Constitution, and this objective should inform contemporary legislators when they engage in law-making. Consistent with these values, it would be imprudent and even immoral to seek a pragmatically beneficial end, no matter how well intended, if the means of achieving it requires unduly burdening a natural right that enjoys express constitutional protection.

Any new gun legislation must conform to the Second Amendment right to keep and bear arms, which is ultimately derived from the natural rights of self-preservation and self-defense. Consistent with these first principles, legislation can surely be crafted to keep guns away from dangerous criminals and the mentally ill without disregarding the inalienable rights of law-abiding citizens. All responsible lawmakers and citizens should join together to seek this proper goal.

EUGENE MILHIZER is dean of Ave Maria School of Law and a member of Legatus’ Naples Chapter.

Adversity breeds strength

Ave Maria School of Law weathers storms & critics, emerging stronger than ever . . .

Hunter Felknor could have gone to any of seven law schools after graduating from Ohio’s Miami University, but ultimately he chose a fledgling Catholic institution in Naples, Fla., for its mission and location.

On May 12, Felknor was one of 174 students who formed the largest graduating class in the history of the Ave Maria School of Law, an independent school founded by Tom Monaghan in 1999 to integrate natural law and the Catholic intellectual tradition into the study and practice of law.

Felknor, who recently interned with the Office of the State Attorney in Florida, said Ave Maria far exceeded his expectations.

“I chose Ave Maria with hopes that the people would have more of a sense of community – and that’s what I found,” he explained. “I couldn’t imagine a more genuine community. People there are concerned not just with looking out for themselves, but also putting their faith in front of themselves.”

Tumultuous start

Now led by dean and president Eugene Milhizer, a member of Legatus’ Naples Chapter, Ave Maria was conceived by a group of professors at the University of Detroit-Mercy School of Law who lost their jobs after protesting a decision to have a pro-abortion judge give the oath of commitment at the end of a school-sponsored Red Mass for lawyers.

They drew up a proposal for a new law school and presented it to Legatus founder and chairman Tom Monaghan, who funded the school through his Ave Maria Foundation. Monaghan has also acted as chairman of the law school’s board of governors from its inception.

After a successful start with founding dean Bernard Dobranski, top-level professors, and students, however, Ave Maria faced fierce opposition when its board decided in 2007 to relocate from Ann Arbor, Mich., to Naples. Some students and professors decided not to make the move to Florida, but others took a more adversarial position.

Three faculty members filed lawsuits against the school, alleging they had suffered reprisals for opposing the relocation plan. Some faculty members also sent a formal complaint to the American Bar Association, which touched off an investigation into the school’s ability to attract and keep competent faculty.

“The opposition was small in number, but loud in voice,” said John Knowles, Ave Maria’s director of external affairs. “It was a big decision and something no American law school had done: relocate from one part of the country to another. It was just a big decision, and big decisions are rarely uncontroversial.”

Nonetheless, by the time the move took place in 2009, Knowles said, a recovery was well underway. The ABA investigation found the school to be in full compliance with association standards — and that fall, Ave Maria welcomed the biggest class in its history. Fundraising continued to rise, culminating in a record year in 2011. And, by the end of 2009, all three lawsuits stemming from the move had been settled.

Maturity

Today the school continues to thrive on a number of levels, according to Milhizer, who came to the school in 2001 as an associate professor and oversaw the relocation as acting dean.

Last year’s overall enrollment was the largest ever and the alumni rolls are now approaching 1,000. The last two years have been strong in terms of faculty recruitment, he said, and the school has just established its first endowed chair — the Reed Larsen Professorship of Labor Law, supported by the National Right to Work Foundation. The chair is filled by John Raudabaugh, a labor and employment law expert who served on the National Labor Relations Board under President George W. Bush.

Additionally, Milhizer said, the school’s moot court team was one of 16 to make it to the finals of a prestigious American Bar Association national competition. This year, the school also launched the International Law Journal, an online publication that explores international law issues from a Catholic and moral perspective.

Milhizer said he considers the chair, moot court competition, and new law journal to be three significant steps in the law school’s maturity.

Robert George

Robert George, who holds the McCormick Chair in Jurisprudence at Princeton University, said when he visited Ave Maria in the spring as commencement speaker, he was particularly struck by students’ intelligence and enthusiasm — and the quality of the younger faculty members he met.

“It’s certainly a good sign for the future of the law school that they’re able to recruit talented, young legal scholars who obviously are deeply committed to the Catholic tradition of the institution,” George said. “You can always tell how an institution is doing by the quality of students and especially its younger faculty. If it’s hiring younger, outstanding faculty, the trajectory is good.”

Academically, the school currently is working on improving its passage rate on the Florida bar exam. Milhizer said the school had years with both good and average bar results in Michigan, but since the move to Florida, the results have left room for improvement.

Independence

Meanwhile, further evidence of a turnaround can be seen in the law school’s independence from Monaghan’s foundation.

“We have become financially self-sufficient in the last two years, which is an important step in the maturation and development of the school,” Milhizer said. “We have to rely not only on tuition, but the support of people who believe in what we’re doing.”

Knowles said the school’s current fundraising priorities include endowed faculty positions and finding ways to subsidize student tuition. Last summer, Ave Maria accepted one of the largest contributions in the school’s history. The six-figure gift will provide a strategic reserve for attracting, recruiting and retaining top students, and providing for their tuition and other expenses, Knowles said.

For current and future students, the school’s Florida location provides abundant opportunities for career preparation because of the presence of a strong bar association, quality law firms and respected local judges, Knowles said. And because Ave Maria is the only law school in southwest Florida, students have an edge when it comes to competing for internships, clinical programs and mentoring opportunities with area legal practitioners, he added.

Knowles said he thinks Ave Maria was able to weather the relocation controversy because those who remained with the school banded together and forged strong relationships. “And they worked harder. They recognized they were part of a great franchise, doing something that had never been done before. Sometimes, adversity breeds strength.”

The school’s future could eventually involve another move — this one to nearby Ave Maria, Fla., home of the university that shares its name. However, Milhizer said, this would require a substantial capital campaign and donors who support relocation, adding that no such plan is imminent.

In the near term, the school is more likely to consider offering a graduate law degree program or devising ways to reach into Latin America and the Caribbean. Milhizer said the school recently began a strategic planning process, the results of which should be available within the next year.

For now, he said, “We would like to continue to do what we’re doing in terms of educating students the way we are.”

Judy Roberts is Legatus magazine’s staff„ writer.