Requirement of firearms possession

[Paul Finkelman]

I agree with John Eastman that  "wide spread use" is not per se a test
of the meaning of the Constitution; but if one wants an originalist
interpretation then looking at contemporary practice is useful.  My
notion of the free press clause as being more expansive than merely
adopting a ban on prior restraint is informed by the actually practice
of journalism from Zenger to 1789.  Similarly, if we are interested in
what "jury trial" would mean, we might look at contemporary jury
trials.  This does not mean we have to follow contemporary practice or
be bound by originalism, but if we are interested in understanding the
goals, and general views, of the framers of an amendment, contemporary
practice is useful.

As I understand the argument:  the NRA contends that gun ownership was
common at the time of the Revolution and at the time of the writing of
the 2nd Amendment, and thus the NRA position is that the framers
intended to protect this right, which everyone had and exercised.  Thus,
the NRA and others with similar views, are inordinately hostile to the
work of Bellesile and others, who undermine their preconceived notions
of what America was like in 1789 or 1791.  Furthermore, the gun lobby
and its fellow travelers makes a great deal of the "heritage" of
American gun ownership -- for them guns ownership is as American as
apple pie, George Washington, and the flag, and that gun ownership has
always been part of America.  It is a cultural argument that flows into
law.  It is sort of Orwellian -- "he who controls the past controls the
present, he who controls the present controls the future."  Thus, if the
"past" was one of gun carrying patriots and settlers, then "true"
Americans carry a gun.


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu




"John C. Eastman" wrote:

> I was referring to the post-colonial period, point the point I was
> making does not turn on that distinction.  If colonial legislatures
> had laws similar to the Militia Act, that would be equally relevant to
> assessing whether we need to look deeper for another explanation for
> Bellesile's research.  Or maybe Sandy is correct in pointing out the
> difficulty with assuming that such laws imply widespread possession of
> guns.  More to the point, though, how does this effect the "private
> right" view of the Second Amendment?  Can the Second Amendment not
> provide a private right to "keep and bear arms" even absent widespread
> gun possession in 1791?  I assume no one would contend that the other
> provisions of the Bill of Rights are only applicable if they were in
> widespread use.
> --John Eastman
> Chapman University School of Law
>
> "Volokh, Eugene" wrote:
>
>>
>>
>>         I'm sorry if I misunderstood, but I had assumed that John
>> was referring to the post-Colonial period (with his reference to
>> "state" governments).  Of course, I must acknowledge that my cite
>> was to a federal law, not a state law, which was what John was
>> originally referring to.  Does anyone know whether any states had
>> laws similar to the Militia Act in that they also required pretty
>> much all able-bodied adult white males to own guns?  I would have
>> thought that the federal law must have had some state precedents,
>> but I'm not certain.
>>
>> John Eastman originally wrote:
>>
>>           > I seem to recall reading some time ago that many local
>>           (or state?) governments
>>           > had requirements that every able-bodied adult male be in
>>           possession of a
>>           > flintlock.  Is that not the case?  (And I don't ask that
>>           rhetorically.  I
>>           > really do not know).  If it is, does Bellesile's
>>           research mean that many failed
>>           > to comply with this law?  Or does it suggest that there
>>           may be another
>>           > explanation for the lack of reference in probate
>>           documents to guns?
>>
>> Paul Finkelman then responded:
>>
>>           On John's point, most males apparently did not own a
>>           musket or rifle of any kind,
>>           they were VERY expensive and not pleantiful, and my guess
>>           is that the "requirement"
>>           is in part mythical and was rarely enforced or
>>           implemented, however it was written.
>>
>> I responded:
>>
>>
>>                   If the requirement of firearms possession was
>>           "mythical", it was a pretty realistic seeming myth,
>>           realistic enough to fool people who printed the federal
>>           statute books!  The federal Militia Act of 1792, 2nd Cong.
>>           sess. I, ch. 33, provides that:  . . .
>>
>> Paul Finkelman finally wrote:
>>
>>           I believe that John was referring to the Colonial period,
>>           as was I, which as even Eugene knows, is before the
>>           Federal statutes were written!
>>



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