2d amendment

[Leslie Goldstein]

no , I was not meaning to imply precisely that the 2d IS what the
dissent wnated, rather that the dissent appears to represent some of the
general thinking of the time about what mattered with respect to the
right to bear arms.  The dissent is interesting because unlike certain
other anti-federalist statements that mention arms, it does not focus
exclusively on the right of states to have militias.  Also I think it is
intersting because it probably does express the kind of thing people may
have thought of when they read the phrase "well regulated militia"
(i.e. the kinds of regulations that were thought appropriate with
respect to gun owning.
best wishes,
LFG

Paul Finkelman wrote:
>
> Leslie is correct only if she believes that the Penn. *MINORITY* actually
> got what they were asking for; since in fact Madison and the Congress
> rejected the requests of hte PA. minority on this point (although accepted
> their languages on many other points), one might read the 2nd amendment
> entirely the other way:  that is is about the right of the states to
> maintain their militias and the right of the state to arm their militias if
> Congress fails to do so.  In this sense it is more like a counter to the
> "dormant commerce clause" -- or in this cases, the "dormant powers of
> Congress."  Since the Constiotution specifically gives Congress the power to
> arm the militias, without the 2nd amendment one might argue that if Congress
> refuses to arm the militias the states are precluded from doing so under a
> theory of a dormant Congressional power; or if Congress indequately arms the
> militias, the state, under the 2nd Am. , can give them more arms (unless
> Congress forbids it).
>
> The NRA would have us believe that the sentiments of the Minority in Pa were
> incorporated into the 2nd Amendment, but there is no evidence to support
> that view and a good deal of evidence to refute it.
>
> --
> Paul Finkelman
> Chapman Distinguished Professor
> University of Tulsa College of Law
> 3120 East 4th Place
> Tulsa, Oklahoma  74104-2499
>
> 918-631-3706 (office)
> 918-631-2194 (fax)
>
> paul-finkelman at utulsa.edu
>
> Leslie Goldstein wrote:
>
> > I have been pondering lately the fact that the dissenting report from
> > the 1787 Pennsylvania ratifying convention , in requesting a bill of
> > rights, specifically itemized "the right to bear arms for the defense of
> > themselves ...or for killing game" (coupled with "no law shall be passed
> > for disarming the people or any of them unless for crimes committed, or
> > real danger of public injury from individuals") AND "The inhabitants of
> > the several states shall have liberty to fowl and hunt in seasonable
> > time on the lands they hold, and on all other lands in the US not
> > inclosed {and the right to fish...]
> >
> > Interesting light is shed on these passages in a book review by Edmund
> > Morgan of Bellesiles new book, found in the most recent (10/19) NYReview
> > of Books.  Morgan points out that in 18th century England the right to
> > own guns and the right to hunt were both restricted to the higher castes
> > of society (he does not say whether one had to be noble or whether
> > certain high gentry could get in on the fun).  Thus these rights in the
> > US were specificallly being claimed as rights of the PEOPLE, as in the
> > kind of people supposedly represented in the House of Commons, the
> > non-royal, non-noble people--commoners.   In this light, the 2d amdment
> > shines forth as a supplement to the ban on titles of nobility--an
> > additional dimension in the pre-civil war Constitution of the concept of
> > equal protection of the law; no privileged classes here.
> >
> > best wishes,
> > Leslie Goldstein
> >
> > >