Unit on Second Amendment?

Wed Apr 2 08:16:31 PDT 2008

I fear that Professor Volokh's post overlooks an important textual difference between the Second Amendment and the other constitutional provisions that recognize individual rights.  While I am happy to agree with Professors Volokh, Levinson, and many others that the Second Amendment's preamble does not mean that the amendment protects only a collective right, at a minimum, the preamble makes plain that those eligible to keep and bear arms (the "militia" in 18th century terms) are to be "well regulated."  No other rights-protecting constitutional provision contains a similarly broad textual commitment to regulatory power.

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 4/2/2008 7:54 AM
To: Conlawprof at lists.ucla.edu
Subject: RE: Unit on Second Amendment?

    I agree entirely that legislatures must have some degree of flexibility in regulating the exercise of various rights.  But I should note that "an amendment that arguably facilitates homicides more than it does freedom" is a phrase that can be used about many amendments, not just the Second.  Consider, for instance, the privilege against self-incrimination, which "arguably" does little to promote freedom and yet helps criminals avoid conviction in quite a few cases, and thus lets them commit future crimes, including homicides; consider likewise the Fourth Amendment, various aspects of the Sixth, and in some instances the Free Speech Clause, which protects the spreaad of ideas that help lead to homicides (a factor that I find much outweighed by the value of protecting even such pro-violence speech, but that may "arguably" be said to be otherwise).

    Eugene

________________________________

	From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miguel Schor
	Sent: Wednesday, April 02, 2008 5:51 AM
	To: Alan Tauber; Conlawprof at lists.ucla.edu; s-gerber at onu.edu
	Subject: RE: Unit on Second Amendment?

	One constitutional principle that should be taught in any second amendment  unit-but will not be I suspect-is embedded in Section 1 of the Canadian Charter of Rights and Freedoms.  It provides very sensibly as follows: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."  Limitations clauses are important because they inform courts that legislatures have a role to play in construing rights.  For an amendment that arguably facilitates homicides more than it does freedom, the role of legislatures in construing rights is an important principle to keep in mind.  

	Miguel Schor
	Associate Professor of Law
	Suffolk University Law School
	120 Tremont St.
	Boston, MA 02108
	617-305-6244
	SSRN Webpage http://ssrn.com/author=469730

	---- Original message ----

		Date: Wed, 02 Apr 2008 08:09:27 -0400
		From: "Alan Tauber" <taubera at gwm.sc.edu>
		Subject: RE: Unit on Second Amendment?
		To: <Conlawprof at lists.ucla.edu>,<s-gerber at onu.edu>
		>When I was in law school, we did a unit on the Second Amendment. We read U.S. v. Miller, the Supreme Court's last case on the Second Amendment, back in 1923. We also read Emerson, the 5th Circuit case that first recognized the Amendment protected a personal right.
		>
		>Obviously, I'd add the case pending before the Supreme Court - the lower court opinion, since I'm assuming the Court is going to wait to drop the opinion until the last day of the term.
		>
		>Hope that helps,
		>Alan
		>
		>Alan Tauber, J.D.
		>Ph.D. Candidate, Political Science
		>University of South Carolina
		>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=467126
		>>>> "Gerber, Scott" <s-gerber at onu.edu> 04/02/08 6:39 AM >>>
		>Please share any answers to David's question with the list.
		>Thanks,
		>Scott
		> 
		>*****************************
		>Scott Douglas Gerber
		>Professor of Law
		>Ohio Northern University
		>Ada, OH 45810
		>419-772-2219
		>http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
		>http://upress.kent.edu/books/Gerber_S.htm
		>
		>________________________________
		>
		>From: conlawprof-bounces at lists.ucla.edu on behalf of DavidEBernstein at aol.com
		>Sent: Tue 4/1/2008 10:45 PM
		>To: Conlawprof at lists.ucla.edu
		>Subject: Unit on Second Amendment?
		>
		>
		>Hi, all.
		> 
		>I have one two-hour class to fill at the end of the semester, and I've been considering my options. One option is a unit on the 2nd Amendment. The casebook I'm using doesn't cover it at all. Has anyone spent either one or two hours on it, and if so, could you share what you had the students read (private responses welcome). 
		> 
		>David E. Bernstein
		>Professor
		>George Mason University School of Law
		>http://mason.gmu.edu/~dbernste
		>
		>
		>
		>________________________________
		>
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