Originalism and technological changes

[Paul Finkelman]

Bowling's article, "A Tub to the Whale" shows antifederalist objections to Bill
of Rights; my article  "James Madison and the Bill of Rights:  A Reluctant
Paternity,"  Supreme Court Review 1990 (1991) 301-347, details how Madison
wanted to make no dramatic changes in Constitution and how he thought bill of
rights did that; the A-Fs asked for specific protections of a personal right to
own guns (see the "Dissent of the.Minoirty in the Pa" for examples of this;  As
I point out in a forthcoming article in Chicago-Kent Law Review, Madison
accepted the ideas, and the direct language of the Pa. Dissenters for much of
what became the 1st, 4th, 5th, 6th, 8th, and 9th amenmdents.   He took none of
their language on bearing arms for the 2nd.  Logially, as Mark Graber notes in
a recent post, it is impossible to imagine that the Framers of the Billof
Rights did not want Congress to retain the right to disarm the rabble in the
federal district and in the territories.  They certainly feared the wild
westerners who might end up like Shayes, but if we accept  the NRA theory of
hte Amendment, or Prof. Sisk's theory; the fed. govt. would have been
prohibited from disarming the rabble in those places.

Paul Finkelman

Michael McConnell wrote:

> What Paul Finkelman says makes sense, if the question is: what would we
> imagine conservative Federalists probably would have wanted? But is there
> actual evidence that this is what they got? The language of the Amendment
> seems ambiguous -- at best -- and more likely protective of an individual
> right. Where is the record of Congress's "flat rejection" of antifederalist
> demands for an explicit individual right to bear arms? Where is the record
> that antifederalists interpreted the Second Amendment as doing nothing but
> "simply reaffirming" that the federal government could not disarm the state
> militias? I ask these not as rhetorical questions, but in genuine interest.
>
> Michael McConnell
> University of Utah College of Law
> 332 South 1400 East Rm. 101
> Salt Lake City, UT 84112
>
> > -----Original Message-----
> > From: Paul Finkelman [mailto:Paul-Finkelman at UTULSA.EDU]
> > Sent: Sunday, January 07, 2001 5:21 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Originalism and technological changes
> >
> >
> > Before we accept Sisk's historical or textual view  "I think it plain,
> > textually and historically, that the Second Amendment
> > includes an individual
> > right" ; of the 2nd Amendment we should consider who wrote
> > the and passed the
> > 2nd amendment. The Congress was entirely dominated by conservative
> > "federalists" (there were 3 of 22 antifederalists in the
> > Senate, and under 10
> > a-fs. in the house).  The Federalists were determined to
> > avoid altering the
> > Constitution in any manner; they thought the antifederalists
> > would were foolish
> > at best and dangerous at worst.  They passed  amendments that
> > would do no
> > harm.  Thus, they flatly rejected the antifederalists demands
> > for explicit
> > protecton of an individual right to bear arms, and instead
> > simply reaffirmed
> > that the national govt. would not abolish the state militias.
> >  This was one
> > reason why the leading antifederalists hated the bill of
> > rights, and people
> > like Patrick Henry opposed ratification of the amendments, and why the
> > federalists in many states agreed to them.  The
> > antifederalists complained the
> > Bill of Rights was a "tub to the whale" and they were right.
> > I would urge a
> > careful reading of Ken Bowling's very important essay "'A Tub
> > to the Whale',"
> > first published in the Journal of the Early Republic and
> > widely reprinted.
> >
> > Does Sisk really believe that the conservative federalists
> > who wrote this
> > amendment intended to preclude the national government from
> > disarming the
> > rabble in the federal district, the fed. territories, or on
> > federal lands?
> > Does he believe that James Madision, Roger Sherman, and the
> > other convention
> > delegates in Congress inserted a suicide clause into the
> > Constitution?  Both
> > the federalists (Madison et al) and the a-fs. in 1789-91
> > agreed that this is
> > NOT what the bill of rights did.
> >
> >
> > --
> > 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
> >
> >
> >
> > Greg Sisk wrote:
> >
> > > Professor Masinter's misunderstands my point.  Of course no
> > one hunts
> > > with an assault rifle.  Of course an assault rifle is ill-suited for
> > > self-defense.  I personally could care less whether rifles
> > > cosmetically designed to appear like military weapons are
> > banned.  My
> > > point is that the assault weapons ban accomplishes nothing
> > > substantively.  And, yes, I would contend it is irrational.
> >  Not only
> > > does no one use a cosmetically-shaped assault rifle for hunting, but
> > > no one is holding up stores, shooting students at school,
> > or engaging
> > > in gang fights with them either.  Moreover, it is irrational because
> > > it targets a largely make-believe category of firearms.  "Assault
> > > rifles" of the cosmetic knock-off variety that were available to
> > > civilians are defined by the statute banning them, not by any
> > > otherwise understood category of firearms.  Other still legal and
> > > widely available rifles, which do not have the same cosmetic
> > > appearance, have the same functional capabilities, so nothing was
> > > achieved by the ban in terms of actually removing a substantive
> > > category of weapons from the market.  The purpose of the ban was so
> > > that politicians could cynically pretend they had accomplished
> > > something when they had not.
> > >
> > > My other points are these:  First, politicians advocating
> > gun control
> > > are no less averse to using political manipulation and cynical
> > > imagery than other political actors.  The assault rifle ban was
> > > basically a scam.  Again, because there's not much
> > substance to it, I
> > > could care less whether it was enacted or not.  But its primary
> > > promoters knew that it meant nothing and went forward nonetheless.
> > > Second, many gun control supporters are fairly ignorant about guns
> > > and thus too easily influenced by such empty arguments and
> > proposals.
> > > Take the average law professor who holds a strong anti-gun stance
> > > (i.e., the typical law professor).  For those that I know here, most
> > > harbor such antipathy toward firearms that they not only have never
> > > owned one but never actually held or fired one.  Many do not
> > > understand what categories of firearms exist, what distinguishes one
> > > type of firearm from another, what are functional characteristics of
> > > types of firearms, how firearms can be safely secured, etc.
> > >
> > > Please understand that I say this from the perspective of
> > someone who
> > > falls into the middle of spectrum on this issue.  I think it plain,
> > > textually and historically, that the Second Amendment includes an
> > > individual right; I am opposed to an outright ban on firearms or
> > > handguns as a violation of liberty principles and as likely
> > > counterproductive in terms of removing guns from
> > law-abiding citizens
> > > while not reducing availability to the criminal element.  On the
> > > other hand, I support most efforts to limit proliferation
> > of firearms
> > > into the wrong hands, to impose checks and waiting periods, to ban
> > > certain types of (substantively meaningful) firearms, and (maybe)
> > > even to require some type of licensing and firearm safety education
> > > as a condition to ownership.
> > >
> > > >Let me pose the question differently.  Do you know anyone
> > who hunts with
> > > >an assault rifle?  Who thinks that its short barrel and
> > large clip make it
> > > >useful for shooting something other than people?  Do you
> > know anyone who
> > > >thinks that an assault rifle is useful for personal
> > protection or crime
> > > >deterrence? Who thinks that it is a good bedside weapon,
> > or perhaps a
> > > >useful sidearm?  Do you know anyone who uses an assault rifle in
> > > >competitive target shooting (and if you do, I would like
> > to discuss a
> > > >match)?
> > > >
> > > >The assault rifle legislation may have only a marginal
> > impact, but that
> > > >does not make it irrational.
> > > >
> > > >Michael R. Masinter                     3305 College Avenue
> > > >Nova Southeastern University            Fort Lauderdale, Fl. 33314
> > > >Shepard Broad Law Center                (954) 262-6151
> > > >masinter at nova.edu                       Chair, ACLU of
> > Florida Legal Panel
> > > >
> >

--
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