Unit on Second Amendment?

Rosenthal, Lawrence rosentha at chapman.edu
Wed Apr 2 09:30:31 PDT 2008


I am very sorry if we are talking past each other.  The point I am struggling to make is that the Second Amendment uses the term "militia," not "milita service" (if it used the latter term the collective rights view would be much stronger) and the term milita includes everyone who keeps and bears firearms.  Even if the gun is bought for purely personal services, all adults are part of the militia and subject to regulation.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: Ilya Somin [mailto:isomin at gmu.edu]
Sent: Wed 4/2/2008 9:26 AM
To: Rosenthal, Lawrence
Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
Subject: Re: RE: RE: RE: Unit on Second Amendment?



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
> > >               >To subscribe, unsubscribe, change options, or get
> > > password, see http://lists.ucla.edu/cgi-
> > > bin/mailman/listinfo/conlawprof               >
> > >               >Please note that messages sent to this large list
> > cannot> be viewed as private. Anyone can subscribe to the list and
> > read> messages that are posted; people can read the Web
> archives; and
> > > list members can (rightly or wrongly) forward the messages to
> > others.>               >
> > >               >_______________________________________________
> > >               >To post, send message to Conlawprof at lists.ucla.edu
> > >               >To subscribe, unsubscribe, change options, or get
> > > password, see http://lists.ucla.edu/cgi-
> > > bin/mailman/listinfo/conlawprof               >
> > >               >Please note that messages sent to this large list
> > cannot> be viewed as private. Anyone can subscribe to the list and
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> > > list members can (rightly or wrongly) forward the messages to
> > others.>            
> > >
> > >
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get password, see
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> > >
> > > Please note that messages sent to this large list cannot be viewed
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> > > members can (rightly or wrongly) forward the messages to others.
> > >
> >
> >
> >
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed
> as private.  Anyone can subscribe to the list and read messages
> that are posted; people can read the Web archives; and list
> members can (rightly or wrongly) forward the messages to others.
>
>
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