Right to bear arms

[Bill Funk]

"Volokh, Eugene" wrote:

>         It seems to me that the aimed-to-protect-the-state theory does
> not explain the right of the people to bear arms as expressed in state
> constitutions.

I agree.  My analysis of the Second Amendment is not intended to explain
the meaning of state constitutional provisions.  I have not done the
independent research on my own or spent enough time reading others'
research to determine what the original 13 states' constitutional
provisions were intended to protect.

>  Neither can it explain the right to have arms in the English Bill of
> Rights, since of course there were no states in England.

Again, I agree.  But I would not necessarily expect the Second Amendment
with its reference to militias, whatever the intent or meaning of that
reference, to replicate the English Bill of Rights, since of course
there was no militia in England.  Again, I don't purport to know much
about the state constitutional provisions, but it would seem to me that
THEY would be more likely to reflect the notion of the English Bill of
Rights.

> And if these rights to bear arms are indeed not primarily about
> protecting the states from themselves, then it seems hard for me to
> infer that the right to bear arms in the 2nd Am -- distinctly from all
> these other rights -- is about protecting the states from the federal
> government.

I don't know why.  Parts of the Bill of Rights are clearly about
protecting states (as opposed to "the people") from the federal
government. In my reading of the Second Amendment, people are protected,
but the extent of their protection depends upon the purpose of
protecting the ability of the state to have a good militia, which in
turn protects the people of the state both from insurrection from within
and tyranny from without. It may be that there was no perceived need to
have an individual right to keep and bear arms for the purpose of rising
up against federal tyranny, because the state militia would be the
instrument of rising up against federal tyranny.  However, at the state
level, the state militia is the state, so that if one wanted to rise up
against the state, the right to keep and bear arms would have to include
an individual right to overthrown the government. On the other hand,
maybe Paul is right that the Federalists simply weren't willing to
protect an individual right to overthrow the government; or maybe the
protection of an individual right to keep and bear arms (even if the
purpose behind the right was the state's interest in a good militia)
effectively protected the individual's right to keep and bear arms for
whatever reason.  My point is only that it is not necessarily
inconsistent or contradictory to have a different protection for keeping
and bearing arms in the Second Amendment than in state constitutions.

Bill Funk
Lewis & Clark Law School
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