2nd Am and Quakers

[Volokh, Eugene]

        Hmm.  Well, that would be an interesting reading of the 2nd Am; but
I'm unaware of any sort of contemporaneous writing that suggests that "the
right of the people" would ever mean the right of the People capitalized
(and, by the way, it isn't capitalized in the 2nd Am) to form collective
bodies that they could force other people to join in.  That seems to me to
be the power of the states, not the right of the people.

        Certainly "the right of the people" in the 1st Am and the 4th Am
doesn't remotely seem to be anything like that; nor is any of the state
right-to-keep-and-bear-arms provisions sensibly understood that way; nor can
the English Bill of Rights, on which the 2nd Am was based (though its scope
was broadened considerably beyond the English one), be understood that way;
nor does Tucker, Story, or Cooley say that.  Again, we have an interesting
theory (though perhaps not Prof. Johnson's -- I'd love to hear his own
clarification of the matter); it just isn't consistent with the evidence.

> -----Original Message-----
> From: Scarberry, Mark [SMTP:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Tuesday, October 10, 2000 4:41 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: 2nd Am and Quakers
>
> I assume he means that they were exempted from the right that the People
> had to form a militia and to force able-bodied citizens to join it.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
>
>       -----Original Message-----
>       From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
>       Sent: Tuesday, October 10, 2000 4:35 PM
>       To: CONLAWPROF at listserv.ucla.edu
>       Subject: Re: 2nd Am and Quakers
>
>
>
>               I'm a bit puzzled by Prof. Johnson's claim that "Madison's
> right to bear arms was a right from which Quakers were exempted."  Is
> there any statement from any Framer or anyone else during that era that
> supports the theory that the Quakers were not entitled to benefit from
> "the right of the people to keep and bear arms"?
>
>               Recall that the Pennsylvania Bill of Rights (I cite it
> because we're speaking of Quakers) of 1777 said that "the people have a
> right to bear arms for the defence of themselves and the state"; the 1790
> version said "The right of the citizens to bear arms in defence of
> themselves and the State shall not be questioned."  Is the claim that
> Quakers weren't part of "the people" or that they weren't "citizens"?  And
> if they benefited from the Pennsylvania provision, can it really be the
> case that an individual "right to bear arms" that extended to Quakers as
> well as to anyone else was suddenly transmogrified into a state's right or
> at least a right that excluded Quakers in the Federal provision?
>
>               Likewise, let me probe a bit at the statement that "the
> founders would have been appalled to find the power of an AK 47 in the
> hands of every vicious outlaw on the streets or in the hills."  First, it
> seems to me this is the proper query only if one is claiming that the 2nd
> Am *does* protect an individual right, but not to have guns as supposedly
> lethal as the AK 47 (actually, the semi-automatic version of this is
> really no more lethal than rifles generally are) in the hands of vicious
> outlaws.  If the claim is that the 2nd Am doesn't protect any individual
> right to keep and bear arms, even when one is a law-abiding citizen, then
> the question would be whether "the founders would have been appalled to
> find the power of a typical modern gun in the hands of every citizen on
> the streets or in the hills."
>
>               But in any event, it seems to me that the founders were
> quite big on having serious military power in the hands of every person
> (though I'm sure they'd have preferred more law-abiding citizens than
> outlaws to have it).  Blackstone saw the right to have arms as necessary
> to allow people to exercise "the natural right of resistance and
> self-preservation, when the sanctions of society and laws are found
> insufficient to restrain the violence of oppression."  Madison in
> Federalist No. 46 spoke about how we shouldn't fear federal tyranny
> because of "the advantage of being armed, which the Americans possess over
> the people of almost every other nation"; and while he stressed that the
> state governments would also help fight federal tyranny with the force of
> arms, he separately said that the people even independently of such
> intermediate governments might "shake off their yokes" with "arms."
> Story, no raving revolutionary, wrote that "The right of the citizens to
> keep and bear arms has justly been considered, as the palladium of the
> liberties of a republic; since it offers a strong moral check against the
> usurpation and arbitrary power of rulers; and will generally, even if
> these are successful in the first instance, enable the people to resist
> and triumph over them."
>
>               It seems to me there are lot of historical theories that can
> be made about what the 2nd Am might have meant; but the question is
> whether they are consistent with the evidence.  There is a huge amount of
> evidence that the Framers meant the 2nd Am to secure an individual right
> to keep and bear arms, including arms that were quite lethal.  I'm unaware
> of any evidence that any of the Framers entertained the view that "the
> people" meant "the states," that Quakers weren't included in the
> constitutional protection, or that the Framers envisioned the 2nd Am as
> allowing the government to disarm the citizenry.
>
>               By the way, does anyone know what the true relative
> lethality is of a modern gun vs. a gun of the Revolutionary era?  It's
> true that the modern guns shoot more quickly, simply because they shoot
> several times without the need to reload, and can be reloaded quickly
> (something that was largely in place, by the way, once the revolver was
> introduced in the 1840s or so); I believe they also have a higher muzzle
> velocity.  At the same time, my guess is that gunshot wounds were much
> more likely to be fatal given the medicine of the late 1700s than they are
> today.  By way of reference, I believe that about 15% or so of people
> wounded in criminal assaults die of their wounds today -- any sense of
> what the comparable statistic was likely to have been around the time of
> the Framing?
>
>
>       Calvin Johnson writes:
>
>               It seems quite reasonable to interpret Madison's right to
> arms as
>       historical  trivia.   Madison's right to bear arms was a right from
> which
>       Quakers were exempted.  The militias was by analogy the Protestant
> armies
>       balanced against King James' Catholic standing armies in the
> Glorious
>       Revolution rhetoric that the 1780s seemed to use to make their
> points.
>       Rifles were tightly controlled in arsenals and even when not, they
> were
>       not noticeable superior to the bow or arrow, bayonet or tomahawk.
> The
>       founders would have been appalled to find the power of an AK 47 in
> the
>       hands of every vicious outlaw on the streets or in the hills.
>               Why not adopt the interpretation of the Constitution that
> protects the
>       civilization?   Why insist upon bringing Kosovo, Ethiopia or Congo
> onto our
>       wind swept shores?  What is the motive for interpreting the
> Constitution as
>       a Covenant With Death?    I dont understand it.   Why?
>
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