Unit on Second Amendment?
Rosenthal, Lawrence
rosentha at chapman.edu
Wed Apr 2 10:43:25 PDT 2008
Now we are talking past each other. Professors Lund and Volokh's posts
make clear that the 18th century definition of "militia" included
state-organized military organizations, but does not establish that the
definition was limited to such organizations. Over the past 25 years,
advocates of the individual rights view of the Second Amendment, in
order to reconcile the individual rights view with the preamble, have
argued quite persuasively that the term militia was not limited to
governmentally organized militias, but included the whole of the
population thought able to keep and bear arms. Although my posts seem
to provoke a lot of contention, no one has expressly rejected this view,
and Professor Somin has conceded its correctness. Advocates of the
individual rights view, however, cannot have it both ways. If the
militia includes everyone thought capable of keeping and bearing arms,
then that entire universe is subject to the ample regulatory power
acknowledged in the preamble. And, as Saul Cornell among other has
demonstrated, even the 18th century conception of regulatory power (and
it is unclear to me that the text chains us to 18th century conceptions
on this point -- compare the Second Amendment's preamble to the Seventh
Amendment's explicit reference to the then-extant common law) was
expansive.
Larry Rosenthal
Chapman University School of Law
-----Original Message-----
From: nlund at gmu.edu [mailto:nlund at gmu.edu]
Sent: Wednesday, April 02, 2008 9:30 AM
To: Rosenthal, Lawrence
Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
Subject: Re: Unit on Second Amendment?
The Second Amendment added absolutely nothing to the near-plenary
authority of Congress, conferred in Art. I, to regulate the militia. It
is not true that "the preamble makes plain that those eligible to keep
and bear arms (the 'militia' in 18th century terms) are to be 'well
regulated.'" For one thing, among others, the Second Amendment does not
identify "those eligible to keep and bear arms" as "the militia." On the
contrary, the Second Amendment says that the right to keep and bear arms
belongs to "the people," and the militia at that time (as now) was a
small subset of the citizenry.
Nelson Lund
George Mason
Rosenthal, Lawrence wrote:
> 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=aol
hom00030000000001> .
> >_______________________________________________
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