Unit on Second Amendment?

Ilya Somin isomin at gmu.edu
Wed Apr 2 09:32:36 PDT 2008


Thanks! Eugene (who unlike me is a 2nd Amendment expert) puts the point better than I could. 



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: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date: Wednesday, April 2, 2008 12:22 pm
Subject: RE: RE: Unit on Second Amendment?

> 	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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