2d amendment

Wed Oct 11 12:44:15 PDT 2000

Paul's point has some force. But as I read his recent post about the Second
Amendment, Paul relies very heavily on assumptions about what Federalists of
the period would be likely to have supported -- namely, that it was
inconceivable that they would have wanted the federal government to be
impotent to disarm a mob of revolting citizens. That makes sense, at least
to my mind, and from the modern perspective. But the fact that Tucker,
Story, and Cooley, none of whom were crazy-eyed revolutionaries, supported
precisely the interpretation that Paul suggests was inconceivable for
similar men to hold a generation or three earlier, makes me wonder.

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112

-----Original Message-----
From: Paul Finkelman [mailto:Paul-Finkelman at UTULSA.EDU]
Sent: Tuesday, October 10, 2000 11:14 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: 2d amendment

Eugene offers us a great summary of arguments made long after the adoption
of the 2nd amendment; they were made without any serious investigation of
the drafting of the amendment, the proposed amendments that the Congress had
to consider, or any analysis of the historical circumstances of the
drafting.  With all due respect, what Tucker, Story or Cooley say about the
meaning of the amendment is not all that relevant, especially since they do
not do any research or analysis, but simply without much reflection *assert*
things.  Furthermore, as we know from completely different analysis of the
fugitive slave clause in Prigg and his Commentaries , Story was quite
capable of contradicting himself, and also of more or less making it up as
he went along for whatever was convenient.

I think Eugene may be right about the state bills of rights, but that is a
very different argument and issue.

"Volokh, Eugene" wrote:

        Oh, forgot to say:  All the sources I mention below (except the
Freedmen's Bureau Bill) are excerpted at
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm
<http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm>

        -----Original Message-----
From:   Volokh, Eugene [SMTP:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent:   Tuesday, October 10, 2000 2:57 PM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: 2d amendment

                Leslie is quite right that the right to bear arms was indeed
a liberalization and generalization of the English right.

                The English Bill of Rights provided a right to have arms --
a right that Blackstone described as a right "of every Englishman" and "of
the subject" (i.e., of individuals), and that he described as "a public
allowance, under due restrictions, of the natural right of resistance and
self-preservation, when the sanctions of society and laws are found
insufficient to restrain the violence of oppression."  But the right was
limited to "subjects which are protestants" and provided that the arms were
only those "suitable to their conditions and as allowed by law."

                St. George Tucker, in his 1803 edition of Blackstone's
Commentaries (I believe the first American edition) specifically pointed out
that the 2nd Am was a broader version of this right:  "The right of the
people to keep and bear arms shall not be infringed, and this without any
qualification as to their condition or degree, as is the case in the British
government."

                Likewise, the five calls by state ratification conventions
for a right to bear arms all reflected the breadth of the new U.S. vision of
the right to bear arms.  New Hampshire suggested the wording "Congress shall
never disarm any Citizen unless such as are or have been in Actual
Rebellion."  Virginia, New York, North Carolina, and Rhode Island, said
generally "That the people have a right to keep and bear arms," with no
qualification as to condition or religion; they also suggested militia
provisions, but they stressed that the militia was to "includ[e] the body of
the People capable of bearing Arms" (or "the body of the People, trained to
Arms") and not just a small subset.

                Similarly, the contemporaneous right to bear arms provision
in state Bills of Rights -- which obviously couldn't have referred to a
state's right, precisely because they were in a state Bill of Rights and
were thus a check on state power -- didn't have any limits based on religion
or condition (though naturally some limited it to whites or freemen).  Thus,
for instance, the 1818 Connecticut Bill of Rights (the first that Ct. had),
said that "Every citizen has a right to bear arms in defense of himself and
the state."  The 1790 Pennsylvania and the 1792 Kentucky Bill of Rights said
that "the right of the citizens to bear arms in defense of themselves and
the State shall not be questioned"; the 1777 Vermont Bill of Rights said
that "the people have a right to bear arms for the defence of themselves and
the State."

                        Paul Finkelman writes that "one might read the 2nd
amendment entirely the other way:  that i[t] 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.'"  This suggests that a right (the right to keep and
bear arms)

                        * that was clearly seen as an individual right in
the English Bill of Rights;
                * that was obviously not a states' right in the state Bills
of Rights
was somehow nonetheless a state's right in the 2nd Am, and that the
following people were all mistaken:
                * St. George Tucker when he described the right as being
broader in America than in England;
                * Justice Story when he called it a right of the citizens in
his 1833 Commentaries;
                * the 1866 Congress that enacted the Freedmen's Bureau Bill,
which insisted that the freedmen were entitled to "the full and equal
benefit of all laws and proceedings concerning personal liberty, personal
security, and the acquisition, enjoyment, and disposition of estate, real
and personal, including the constitutional right to bear arms";

                        * Justice Cooley, in his late 1800s treatise on
constitutional law;
                * and many other 1800s courts and commentators.

                        In fact, as David Kopel has exhaustively chronicled
in a recent article, the states' right theory of the 2nd Am does not appear
in any 1700s or 1800s cases or commentaries, except for one concurring
opinion in the Arkansas Supreme Court's State v. Buzzard case (1842).  The
"dormant commerce clause" theory of the 2nd Am is an invention of the 20th
century, and was to my knowledge unknown in the 18th and the 19th.

        -----Original Message-----
From:   Leslie Goldstein [SMTP:lesl at UDEL.EDU]
Sent:   Tuesday, October 10, 2000 12:42 PM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: 2d amendment

        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

        >

--
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

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