Unit on Second Amendment?
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Apr 2 09:22:32 PDT 2008
I didn't mention the textual features of the Second Amendment
because Prof. Schor's post, to which I was responding, wasn't focused on
them: It was rather arguing in favor of adopting a broad "reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society" principle for those rights that have a certain
practical quality ("arguably facilitat[ing] homicides more than [they
do] freedom").
But if we turn to the text, Ilya's quite correct point is that
the text talks about a "well-regulated militia," not a regulated right.
The notion of militia regulations was quite clearly defined to the
Framers -- there were lots of acts at the time with titles such as "An
Act for regulating the Militia," and they dealt with training,
disciplining, arming, and organizing militia members (who indeed were
pretty much all able-bodied full-citizen adults). Hence the OED entry
for "regulated," meaning "Of troops: Properly disciplined." Likewise,
consider a passage from Blackstone's discussion of the militia: "It
seems universally agreed by all historians that king Alfred first
settled a national militia in this kingdom, and by his prudent
discipline made all the subjects of his dominion soldiers: but we are
unfortunately left in the dark as to the particulars of this his so
celebrated regulation." Likewise, see Articles of Confederation art.
VI, para. 4 (U.S. 1781), insisting that "every State shall always keep
up a well regulated and disciplined militia, sufficiently armed and
accoutred." I know of no Acts regulating the militia that purported to
institute broadly applicable gun restrictions. "Regulating the militia"
didn't mean what we would now call "regulating" -- i.e., controlling,
even to the point of banning -- private ownership of weapons.
This having been said, I agree entirely that the Framers would
have accepted a considerable range of restrictions (though not
prohibitions) of private arms ownership, just as they would have as to
speech and other rights. Certainly state constitutional
right-to-bear-arms cases from the 1800s, applying state constitutional
provisions that don't mention a "well-regulated militia," generally
accepted such restrictions (though, again, they balked at restrictions
that were so broad that they were tantamount to prohibitions). But the
focus for that was a general view that modest restrictions aren't
infringements of a right, not a textual hook to a "well-regulated
*militia*."
Eugene
> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Wednesday, April 02, 2008 8:58 AM
> To: Ilya Somin
> Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: RE: RE: Unit on Second Amendment?
>
> As I understand the evidence persuasively marshaled by the
> advocates of the individual rights view of the Second
> Amendment, at least at the time of the framing, the term
> "militia" referred to all adults capable of bearing arms,
> whether in an organized militia or not. Indeed, this point
> is central to Heller's position. At least judging from the
> oral argument in Heller, it appears that a majority of the
> Court is poised to adopt this view of the term. Thus, the
> "militia" that is to be "well regulated" consists of all the
> people, whether in an organized militia or not.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: Ilya Somin [mailto:isomin at gmu.edu]
> Sent: Wed 4/2/2008 8:53 AM
> To: Rosenthal, Lawrence
> Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: Re: RE: Unit on Second Amendment?
>
>
>
> Actually, it is the "Militia" which is supposed to be "Well
> regulated," not the right to bear arms itself.
>
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
>
>
> ----- Original Message -----
> From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
> Date: Wednesday, April 2, 2008 11:16 am
> Subject: RE: Unit on Second Amendment?
>
> > 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/scottge
> rber.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
> > >
> > >
> > >
> > >________________________________
> > >
> > >Create a Home Theater Like the Pros. Watch
> the video on
> > AOL Home <http://home.aol.com/diy/home-improvement-eric-
> > stromer?video=15&ncid=aolhom00030000000001> .
> > >_______________________________________________
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> > >_______________________________________________
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> > _______________________________________________
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> > Please note that messages sent to this large list cannot be
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> > private. Anyone can subscribe to the list and read
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> > posted; people can read the Web archives; and list members can
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