2d amendment

[Randy Barnett]

In response to David Yassky's question, the "individual rights" position is
that the federal government could not disarm "any person" as a "proper"
means to effectuate one of its enumerated powers (without passing the same
degree of scrutiny we associate with other fundamental liberties).  The
federal government certainly could not disarm individuals on the pretext of
accomplishing an enumerate object or end.  Here is what St. George Tucker
said in the appendix to his 1803 edition of Blackstone's Commentaries (that
was based on lectures he gave at the College of William & Mary in the
1790's):

“If, for example, congress were to pass a law prohibiting any person from
bearing arms, as a means of preventing insurrections, the judicial courts,
under the construction of the words necessary and proper, here contended
for, would be able to pronounce decidedly upon the constitutionality of
these means.  But if congress may use any means, which they choose to adopt,
the provision in the constitution which secures to the people the right of
bearing arms, is a mere nullity; and any man imprisoned for bearing arms
under such an act, might be without relief; because in that case, no court
could have any power to pronounce on the necessity or propriety of the means
adopted by congress to carry any specified power into complete effect”

Tucker makes no reference to militia membership, but speaks only of "any
person."  "Bearing arms" can be done by "any man" independently of militia
service.  Whether or not Tucker was correct, his is the position identified
today as the individual rights position. Of course, Tucker's statement must
be evaluated in light of other statements of the day concerning the right to
bear arms. But I know of no person in Tucker's day or earlier who held the
view that the "right to keep and bear arms" "meant (only) to protect
militia-related gun ownership" in either the Second Amendment or, as Eugene
points out, in state constitutions where such an alleged "individual right"
would make even less sense.  Perhaps David identifies such a person in his
forthcoming article. If so, as I stated in my previous post, it would be a
real contribution to the debate.

Randy

PS:  The issue here is not whether Tucker is right about the legislative
history or "intent" behind the 2d Amendment.  Among other reasons for citing
Tucker is that he is an example of an influential and learned scholar and
jurist who takes the meaning of the clause to be a reference to an
individual right unconnected to militia service and which cannot be
infringed by Congress when exercising its enumerated powers.
__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
http://www.bu.edu/rbarnett
http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
http://www.LysanderSpooner.org (Lysander Spooner Website)