Self defense, the milita and "marauding Indians."

[Paul Finkelman]

Nelson Lund makes assertions that are nice theory but don't hold up in practice;
consider the Pennsylvania a-fs, who had a number of demands for amenmends about
weapons; they careful listed different categories of weapon's use such as for
self-defense or for defense of the states; the more conservative a-fs, like the
namesake of Lund's insitution, were interested in a milita to secure the state, not
for self-defense;  gun regulations at the time show a fairly sophisticated notion of
the difference between interpersonal violence and militia duty.  As for "marauding
Indians," just where were these marauders in 1789 when the 2nd was written?  Except
in Ga. and N. C. there were almost no on-going white-Indian contacts in the 13
states except with Indians who had been thoroughly pacified.  The folks on the
frontier (the Ohio Valley) are encountering Indians, but those folks for the most
part are not part of the political debates or votes; what becomes Ky. has a single
Congressman; the old NW is unrepresented, as is Tenn.  This sort of anlaysis does
not relate to the reality of the times, or for that matter the reality for most
Americans since the late 1600s.  Even the Seven Years War (1756-63) only affected a
few Americans on the fringes of settlement; marauding Indians were not charging into
New York, Williamsburg, Philadelphia, or the rice and tobacco plantations of the
Carolinas, Md., Va..

Nelson Lund wrote:

> Michael McConnell wrote:
>
> >
> > "But if the original constitutional purpose (as opposed to the original
> > meaning) of the provision guides our interpretation, aren't we driven to the
> > highly counter-intuitive conclusion that it is unconstitutional to prohibit
> > the people from bearing assault weapons (which are admirably suited to
> > resisting tyranny, and equally admirably suited to maiming large numbers of
> > innocent people for no good reason) but constitutional to prohibit hunting
> > rifles and arms for self-defense?"
>
> This argument depends on two distinctions that don't hold up very well. First,
> the framing generation did not make a sharp distinction between political
> self-defense (against oppressive or tyrannical government) and personal
> self-defense (against oppression that the government left unchecked, from
> sources like robbers or marauding Indians). Second, there is no clear
> distinction between weapons useful for resisting tyranny and weapons useful for
> personal self-defense. Military small arms can all be used effectively for
> personal self-defense, and most "civilian" small arms could be used effectively
> in a military or political emergency. The "ideal" weapon will differ from one
> situation to another (both between the categories of "military" and
> "non-military" and within each of them), but the ideal weapon will almost always
> be something different than what is actually available in any situation.
> (Hunting, by the way, has virtually nothing to do with the Second Amendment.)
>
> Nelson Lund
> George Mason Law School

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

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Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu