Second Amendment thought experiements

[Volokh, Eugene]

        Two related thoughts, in response to Saul's and Leslie's most recent
posts.

        First, one may argue that assembly is a "collective right" in the
sense that its purpose was to foster collective action, or generally to
foster self-government by the citizenry rather than self-expression by
individuals.  (I'm not sure I fully buy this position, but I'm willing to
accept it for argument's sake.)  But surely no-one would say that (1) this
is a collective right, therefore (2) the state, as representative of the
collective, can bar the exercise of the right, or allow only a small
subgroup, chosen by itself, to assemble and to petition.  The right may have
been created for a collective purpose, but any individual (or any citizen,
depending on the wording of the provision) may exercise it, and the
government may not bar people from exercising it.  That's the whole point of
rights that aim to constrain the government.  I would say exactly the same
thing about the 2nd Am right of the people to keep and bear arms.

        Second, Leslie asks whether there is any state constitution that
says "the right of a citizen to bear arms in his own defense shall not be
infringed."  Sure, the 1817 Mississippi Constitution, the 1818 Connecticut
Constitution, and the 1819 Alabama Constitution (all three the first
constitutions of their states) say "Every citizen has a right to bear arms,
in defence of himself and the State."  You see the same in the 1835 Michigan
Constitution and the 1836 Republic of Texas Constitution, and the trend
continues.  I suppose one could argue that this was intentionally a
radically different right from that secured in the 1776 Pennsylvania and
1777 Vermont Constitutions, which say "That the people have a right to bear
arms for the defence of themselves and the state" -- it's theoretically
possible -- but I have not seen a shred of evidence that this is so.  It
seems to me that both sorts of rights secure not just a right aimed at
common defense against and deterrence of government tyranny ("defence of the
state") but also a self-defense right ("defense of himself/themselves").

        But in any event, even if the right is aimed at common defense
against government tyranny, the right is still a right that must be
exercisable by individuals, without any power on the state's part to limit
it to a small group of select state-favored people -- or else we would again
have the highly unlikely scenario of a Bill of Rights securing a right
against the state, but limiting its exercise to only the state's minions.
So one way or another government attempts to disarm the citizenry would be
unconstitutional.

Leslie Goldstein writes:

        Is there any state constitution that says: "The right of a citizen
to
        bear arms in his own defense shall not be infringed"?  I ask
because, as
        I have already noted, I do not consdier the phrase "defense of
        themselves" to be unambiguous.  It may well refer to a citizen army.
        LFG


Saul Cornell writes:

> It seems to me that
> Jack Rakove and Richard Primus both make a strong case that assembly was a
> collective right of  the people. I think the narrow state rights reading
> of
> the collective rights argument is something of  a straw man. It is the
> people in their collective capacity working through their states that
> creates the militia. Although I find Amar's jury analogy problematic
> because it over-states the democratic character of  18th century
> constitutional thought, the jury and the right of assembly do seem to be
> the proper analogs of the right to keep and bear arms.  Both are
> collective
> rights of the people-- an individual can't assemble and an individual
> can't
> constitute a jury as an individual.  My conlaw question for Eugene is
> this:  Does Eugene think that Federalists in 1798 would have had any
> scruples about disarming Jeffersonians by imposing a national  loyalty
> oath? If they had seen such a threat I do not think they would have had
> any
> problem with such a move and would have not seen it as an infringement but
> would have justified it in any number of ways.  It is also clear that such
> an act would have been opposed by Tucker and other proponents of a new
> more
> libertarian view of the Bill of Rights that emerged as result of the
> crisis
> of 1798.
> Saul Cornell
>
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