2d amendment
Richard Dougherty
doughr at ACAD.UDALLAS.EDU
Wed Oct 11 15:13:16 PDT 2000
Eugene points to an interesting problem in interpreting the right of
"the people" in the 2d Amendment when he references the 1st and 4th as
well; that is, does the reference to "people" in those amendments refer
to a collective right as well, or to the establishment or recognition of
a state right? Similarly, if the "people" is collective in the 2d
Amendment, how do we understand the 9th, or the 10th with the reference
to powers reserved "to the States respectively, or to the people"? Is
this simply a redundancy? I know this ground has been covered before,
but it seems worth raising again in light of the discussion.
Richard Dougherty
University of Dallas
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
>
>
> -----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
>
> >
>
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