Right to bear arms

[Paul Finkelman]

I think McConnell is right to some extent; but not about the meaning.
Cealry Madison and Hamilton and other federalists believed they had to
be able to disarm the rabble, as the govt. does during the Whiskey
Rebellion for example; just as no sane advocate of firearms regulation
today believes in taking all the guns from the people, if for no other
reason than we would be overrun by deer and rabbits, Madison did not
believe in such a policy; but there is a difference between sound policy
and a constitutional right; if we read the 2nd as _precluding_ firearms
regulation along the lines of the  first, precluding prior restraing or
seditious libel, then we could not even prohibit convicted felons or
even people on parole, from exercising their 2nd Amendment rights, just
as they can go to Church or publish a newspaper under the First
Amendment.
To quote Michael  "the Second Amendment was a harmless affirmation of
the existing political reality" -- the reality that the national
govenment could not disband the state militias.


 Michael McConnell wrote:

>  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
>
>
--
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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