Unit on Second Amendment?
Nelson Lund
nlund at gmu.edu
Wed Apr 2 09:50:02 PDT 2008
Prior to the adoption of our Constitution, the states defined the
militia by statute (and the definitions varied from place to place).
Article I gives Congress the power to define the militia, and Congress
has done so (again with some variations over time). If Congress so
chooses, it can abolish the militia by exempting everyone from militia
duties. I do not believe that the "right of the people to keep and bear
arms" would disappear if Congress defined the militia out of existence.
Nelson Lund
George Mason
Rosenthal, Lawrence wrote:
> As I understand your work, Professor Lund, the militia included all of those who were considered capable of owning arms and participating in defense -- both self and common defense. Am I wrong?
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: Nelson Lund [mailto:nlund at gmu.edu]
> Sent: Wed 4/2/2008 9:32 AM
> To: Rosenthal, Lawrence
> Cc: Ilya Somin; Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: Re: Unit on Second Amendment?
>
>
>
> There is and always has been a huge gap between those men (not "all
> adults") statutorily subject to militia duty and "all the people."
>
> Nelson Lund
>
> Rosenthal, Lawrence wrote:
>
>> 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> .
>>> >_______________________________________________
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>>> >_______________________________________________
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>> _______________________________________________
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>>
>> 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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