2d Amendment is a sop.

[Calvin Johnson]

        The current proponents of the 2d Amendemt want to interpret it as giving
a right to people to counter-act the Federal government.  I take it the
point is that posse commitatus or individual patriots acting alone are to
have a force of violence equal to or superior to the Federalies so as to be
able to knock the evil Federalies back on their feet, when they displease.
This is a right of violent Revolution built into the founding document itself.
        Anything real in the 2d Amendment has to be understood as a
misinterpretation fo the 2d Amendment.
        The Bill of Rights has to be understood as a sop consisting only of Milk
and Water Propositions.  Madison promised the Virginia Convention that,
upon ratification of the Constitution, he would offer those amendments that
were "not objectionable, or unsafe" and he took a strong hand in filtering
out the institutional restrictions (eg prohibition direct tax, paralysis of
the congress with 2/3 votes).   Washington was hurt that anyone should vote
agains the C because of the absence of a Bill of Rights.  As he wrote to
Lafeyette, the "[d]elegates to the Convention did not [really] object to
their Bill of Rights or Tryal by Jury, but that they did not see how to
adopt a federal mode for jurys without intruding upon the modes of trial
adopted in the various states."
        The Anti-Federalists considered Madison's Bill of Rights amendments to be
a sop or diversion,  "a tub thrown out to whale" to divert the whale and
"secure the freight of the ship and its peaceable voyage."   The Bill of
Rights Amendments were "not those solid and substantial amendments which
the people expect: they are 
 frothy and full of wind."   As Elkins and
McKitrick have argued, "a good many Antifederalists, especially those
powerful in their respective states, were inclined to lump state rights
with personal rights, and to regard the former as equally if not more
important."  Lansing and Yates had set a standard for Anti-Federalism that
"the leading feature of every amendment ought to be the preservation of the
individual States, in their uncontrolled constitutional rights,  and the
Bill of Rights protected not states but individuals.   George Mason had
announced he opposed ratification in part because the Constitution lacked a
bill of rights but he was not mollified by this set.  Madison's proposals,
Mason argued, were "Milk & Water propositions"   Patrick Henry even opposed
adoption of the bill of rights amendments when they when they came to
Virginia for ratification, preferring a second convention instead.
        Interpreting the 2d Amendement to deny the Federal government the absolute
monopoly on violence will increase the violence directed not only against
the state, but also against fellow citizens of the state.  The Constittuion
set up the extended republic, the general levle government as the better
protector of the rights of individuals.  When a "vigorous 2d Amendment"
arms the outlaws, it is the honest citizens who will get killed.


Washington complained that At 02:13 PM 01/08/2001 -0500, you wrote:
>I certainly understand that many people believed that a bill of rights was
unnecessary because
>the enumeration of powers would not warrant the new government in
abridging the freedom of
>speech, infringing the right of the people to keep and bear arms, etc.
>
>But I don't think it follows that those who adopted the bill of rights did
not have certain
>dangers in mind when they chose to write specific protections for certain
liberties into the
>Constitution.
>
>Nelson Lund
>George Mason Law School
>
>Paul Finkelman wrote:
>
>> 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
>

Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705
(512) 232-1306  (voice)
FAX: (512) 232-2399
Website:  http://www.utexas.edu/law/faculty/calvinjohnson