Unit on Second Amendment?
Ilya Somin
isomin at gmu.edu
Wed Apr 2 09:26:22 PDT 2008
I think we are talking past each other here. My point is that there is a distinction between regulating a person with respect to their militia service and taking away (or even limiting) that person's "right to bear arms." Even if the militia includes 100% of the population, that point would still hold true.
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 12:16 pm
Subject: RE: RE: RE: Unit on Second Amendment?
> If the militia includes all persons able to keep and bear arms,
> even when they are in no organized militia, then the regulation of
> the militia surely includes regulation of those who are in no
> organized governmental militia. In short, limiting the textual
> regulatory power to training and discipline would be inconsistent
> with the 18th century definition of militia, which reached beyond
> organized military and paramilitary forces.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
> Sent: Wed 4/2/2008 9:09 AM
> To: Rosenthal, Lawrence
> Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: Re: RE: RE: Unit on Second Amendment?
>
>
>
> I agree. But there is a difference between regulating "the
> militia" (which means things like training, discipline, etc.) and
> regulating their right to bear arms.
>
> 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 11:58 am
> 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/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
> > > >
> > > >
> > > >
> > > >________________________________
> > > >
> > > >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> .
> > > >_______________________________________________
> > > >To post, send message to Conlawprof at lists.ucla.edu
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> > > >_______________________________________________
> > > >To post, send message to Conlawprof at lists.ucla.edu
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> > >
> > > _______________________________________________
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> >
> >
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
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> Please note that messages sent to this large list cannot be viewed
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