Unit on Second Amendment?

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Wed Apr 2 11:28:18 PDT 2008


It seems reasonable to me to think that a generally armed citizenry, the
militia writ large, makes it possible to have a large well-regulated
organized militia (which, as suggested by Art. I, sec. 8, needs to be
regulated so that it is an effective military force), and that as a
result the general right of citizens to keep and bear arms needs to be
protected, without regard to whether citizens are part of the
well-regulated organized militia. Others on this list know far more than
I do about the Second Amendment, but this approach (which I'm sure is
not original) gives meaning to the well-regulated militia reference in
the Second Amendment without undermining the more general right to keep
and bear arms.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
Lawrence
Sent: Wednesday, April 02, 2008 10:43 AM
To: nlund at gmu.edu
Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
Subject: RE: Unit on Second Amendment?

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


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