Self defense, the milita and "marauding Indians."

[Nelson Lund]

Paul Finkelman misunderstood my response to Michael McConnell. I did not assert that
most late eighteenth century Americans were under imminent threats from hostile Indians.
I assume they were not. But neither did they face an imminent threat from a tyrannical
federal government, which everyone seems to agree was at least one of the dangers they
had in mind when adopting the Second Amendment. My point was simply that people of that
time did not make the same sharp distinction that we usually make between  "personal"
self defense and "political" self defense, partly because recent experiences in their
history would have made these categories seem blurrier than they seem to us today. In
any event, even if one assumed that these categories were sharply distinguishable for
some purposes, one could not conclude that there were separate categories of small arms,
some of which were appropriate for "personal" self defense and some of which were
appropriate for "political" self defense.

Nelson Lund
George Mason University Law School


Paul Finkelman wrote:

> 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
>
> 918-631-3706
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>
> E-mail:  paul-finkelman at utulsa.edu