Self defense, the milita and "marauding Indians."

Paul Finkelman paul-finkelman at UTULSA.EDU
Mon Jan 8 09:27:10 PST 2001


Nelson Lund writes as follows:

"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 is that everyone most emphatically *did not* agree that the purpose of the Second
Amendment was to prevent a tyrannical federal government.  Most importantly, the framers of
the Bill of Rights, Madison, Sherman, et al.  did not think they had created a tyrannical
govt. in the first place.  The antifederalists thought they needed protection from the fed.
gov; but the Anti-Feds. were the *losers* in 1787-88 and in 1789-91; they mostly disliked
the Bill of Rights becuase it did not give them the protections they thought they needed.
"The everyone seems to agree ..." I think is a simply wrong, especially for 1789; read what
Madison says in introducing the Amendments; he believes they are "not necessary" to protect
liberty.

Paul Finkelman

Nelson Lund wrote:

> 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
> > Fax 918-631-2194
> >
> > E-mail:  paul-finkelman at utulsa.edu

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu



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