Right to bear arms

[Michael McConnell]

Might this be a reconciliation of Paul Finkelman's point that Madison would
have been opposed to arming the rabble, with the sources that indicate a
tyranny-deterrence function for the right to bear arms, and also to Calvin
Johnson's "sop to the whale" point:

That because the populace was (pace Bellesiles) already heavily armed (as
Madison avers in Federalist 46) and it would have been politically
unthinkable for the federal government disarm them, the Second Amendment was
a harmless affirmation of the existing political reality?

This interpretation does not affect the meaning, but might explain why
conservatives like Madison and Hamilton did not oppose the Second Amendment.



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: Saturday, January 13, 2001 3:28 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Right to bear arms


Eugne and Bill are right that it does not, but that is a different issue;
the states may very well have protected that right, or saw some other right
in the state protection.  But, people like Madison disliked the much that
was in the state constitutions.  Furthermore, no one I think at the time saw
the state right as prohibiting weapons regulation and control.

Paul Finkelman


Bill Funk wrote:


"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

--
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


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