Heller question

Thu Jun 26 11:15:12 PDT 2008

OK, and this "preexisting right" Scalia is describing -- the *prexisting* "right of the People" to which the Second Amendment refers -- comes from (or is codified) . . . where, exactly?

According to my very quick read of the opinion, Scalia says (pp. 19-22) that it 
is derived from (i) the English Bill of Rights, which obviously doesn't get him 
very far, since that right was only available to a discrete group of 
Protestants, and even then was expressly subject to legislative regulation 
("That the subjects which are Protestants may have arms for their defense 
suitable to their conditions and as allowed by law.”); and (ii) Blackstone's 
Commentaries, which describes "it" as "the natural right of resistance and self 
preservation,” and “the right of having and using arms for self-preservation and 
defence."  But the subject of Blackstone's description -- the "it" in his 
sentence -- was, by Justice Scalia's own admission, "the the arms provision of 
the [English] Bill of Rights" -- a provision that (see above) was *not* provided 
to "the People" and that *was* subject to regulation (and thus operative only 
against the Crown, rather than the legislature). 

So, even if the Second Amendment does codify and guarantee a preexisting right 
of the People, where's the evidence that that "right" is anything like the one 
the Court invented today?

P.S.  Please do not read the above as suggesting that I think the case did, or 
should have been, be resolved on these allegedly originalist grounds -- I don't 
think it was, nor should it be.

 -------------- Original message ----------------------
From: "Lawrence Solum" <lsolum at gmail.com>
> Perhaps I am not expressing myself clearly.  Kermit points out that
> when a provision is ambiguous, the construction of the provision may
> have reference to purpose.  Scalia does acknowledge that the purpose
> can affect the construction of the Second Amendment--e.g., in terms of
> what type of weapons may be restricted.  But his point was that there
> was a preexisting legal right--and that the operative provision of the
> clause protects that preexisting right which was the right to posess
> and carry weapons for a variety of purposes, including self-defense,
> hunting, etc.  If you accept that premise--that the the operative
> clause refers to the preexising right--that premise affects the
> relationship between the prefactory clause and the operative clause.
> The case where a new right was created would be different.
> 
> On 6/26/08, Kermit Roosevelt <krooseve at law.upenn.edu> wrote:
> > I'm not sure I get Larry's point.  Sure, the right is the right to
> > possess and carry weapons.  But that right is not absolute.  And if
> > we're asking what's a reasonable restriction on that right, and what's
> > unreasonable, one of the things we need to decide is what's at the core
> > of the right and what's at the periphery.  And Scalia seems to be
> > saying, "We know that the purpose is to protect the militia.  But
> > nonetheless self-defense is at the core of the right because that's the
> > right that was codified."  But why should that be so?  Don't we
> > generally identify the core of rights with reference to their purpose?
> >
> >
> > Kermit Roosevelt
> > Professor of Law
> > University of Pennsylvania Law School
> > 3400 Chestnut St.
> > Philadelphia PA 19104
> > 215.746.8775
> >
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lawrence Solum
> > Sent: Thursday, June 26, 2008 1:44 PM
> > To: Franklin, David
> > Cc: Conlawprof at lists.ucla.edu
> > Subject: Re: Heller question
> >
> > If there were not preexisting right to keep and bear arms, David's worry
> > might be plausible, but in light of the history, Scalia's point seems
> > perfectly clear and almost undoubtedly correct.  The prefactory clause
> > provides the reason, the preexisting right provides the content of the
> > legal command.  The right in question isn't a right to self-defense, or
> > hunting, or militia service: it is the right to posess and carry
> > weapons.
> >
> > On 6/26/08, Franklin, David <DFRANKL2 at depaul.edu> wrote:
> > > Larry,
> > >
> > > Yes, thanks, that certainly seems to be what Scalia is arguing.  But I
> >
> > > continue to doubt -- and this is really what motivated my question to
> > > the list -- whether it's a particularly good argument.
> > >
> > > Although he earlier acknowledges that the prefatory clause is best
> > > read as a purposive, "because" clause (slip op. at 3), Scalia in the
> > > passage I cited seems to interpret the clause as giving merely a
> > > reason for *codification*, rather than as setting forth the central
> > > motivating purpose of the right.
> > >
> > > It doesn't seem unfair to characterize Scalia's gloss on the Second
> > > Amendment as something like the following: "Because a well regulated
> > > Militia is necessary to the security of a free State, we hereby choose
> >
> > > to *codify* a right to keep and bear Arms -- a right whose content has
> >
> > > as much or more to do with self-defense and hunting as with preserving
> >
> > > the militia."
> > >
> > > This seems to me a strained interpretation, and I'm wondering what
> > > others think.
> > >
> > > David
> > >
> > > -----Original Message-----
> > > From: Lawrence Solum [mailto:lsolum at gmail.com]
> > > Sent: Thursday, June 26, 2008 11:00 AM
> > > To: Franklin, David
> > > Cc: Conlawprof at lists.ucla.edu
> > > Subject: Re: Heller question
> > >
> > > David,
> > >
> > > Scalia's point is that the "right to keep and bear arms" includes the
> > > right to use weapons in self-defense.  The purpose for which the right
> >
> > > was codified in the Second Amendment was militia related, but the
> > > content of the preexisting right that was codified in the operative
> > > position is not limited to the motivating purpose of codification.
> > >
> > > Larry
> > >
> > > On 6/26/08, Franklin, David <DFRANKL2 at depaul.edu> wrote:
> > > >
> > > >
> > > > The following paragraph (slip op. at 26) seems central to the
> > > > dispute between majority and dissent in Heller.  I am not sure I
> > > > understand
> > > it.  The
> > > > idea seems to be that the prefatory clause sets forth the purpose
> > > > for
> > > which
> > > > the Amendment was codified, but leaves out the central component of
> > > the
> > > > right itself.  Why should that be?  Is it because the self-defense
> > > purpose
> > > > went without saying?  Insight from list members would be
> > appreciated.
> > > >
> > > >
> > > >
> > > > It is therefore entirely sensible that the Second Amendment's
> > > prefatory
> > > > clause announces the purpose for which the right was codified: to
> > > prevent
> > > > elimination of the militia. The prefatory clause does not suggest
> > > > that preserving the militia was the only reason Americans valued the
> > > ancient
> > > > right; most undoubtedly thought it even more important for
> > > self-defense and
> > > > hunting. But the threat that the new Federal Government would
> > > > destroy
> > > the
> > > > citizens' militia by taking away their arms was the reason that
> > > right-unlike
> > > > some other English rights-was codified in a written Constitution.
> > > JUSTICE
> > > > BREYER's assertion that individual self-defense is merely a
> > > "subsidiary
> > > > interest" of the right to keep and bear arms, see post, at 36, is
> > > profoundly
> > > > mistaken. He bases that assertion solely upon the prologue-but that
> > > can only
> > > > show that self-defense had little to do with the right's
> > > > codification;
> > > it
> > > > was the central component of the right itself.
> > > > _______________________________________________
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> > >
> > >
> > > --
> > > Lawrence Solum
> > > Associate Dean for Faculty and Research, John E. Cribbet Professor of
> > > Law, & Professor of Philosophy Co-Director, Institute for Law and
> > > Philosophy University of Illinois College of Law
> > > 504 East Pennsylvania Avenue
> > > Champaign, IL  61820-6909
> > > lsolum at gmail.com or lsolum at illinois.edu
> > >
> > > --
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> > >
> >
> >
> > --
> > Lawrence Solum
> > Associate Dean for Faculty and Research, John E. Cribbet Professor of
> > Law, & Professor of Philosophy Co-Director, Institute for Law and
> > Philosophy University of Illinois College of Law
> > 504 East Pennsylvania Avenue
> > Champaign, IL  61820-6909
> > lsolum at gmail.com or lsolum at illinois.edu
> >
> > --
> >
> > http://lsolum.typepad.com/legaltheory/
> > (blog)
> > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
> > (ssrn page)
> > http://home.law.uiuc.edu/~lsolum/
> > (personal home page)
> > http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
> > (homepage at the University of Illinois College of Law)
> > http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
> > (homepage at the University of Illinois Department of Philosophy)
> > http://www.pbase.com/lsolum/root (photography galleries)
> >
> > Assistant: Amy Fitzgerald
> > (217) 333-9115 / amfitzge at law.uiuc.edu
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> >
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> 
> 
> -- 
> Lawrence Solum
> Associate Dean for Faculty and Research, John E. Cribbet Professor of
> Law, & Professor of Philosophy
> Co-Director, Institute for Law and Philosophy
> University of Illinois College of Law
> 504 East Pennsylvania Avenue
> Champaign, IL  61820-6909
> lsolum at gmail.com or lsolum at illinois.edu
> 
> --
> 
> http://lsolum.typepad.com/legaltheory/
> (blog)
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
> (ssrn page)
> http://home.law.uiuc.edu/~lsolum/
> (personal home page)
> http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
> (homepage at the University of Illinois College of Law)
> http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
> (homepage at the University of Illinois Department of Philosophy)
> http://www.pbase.com/lsolum/root
> (photography galleries)
> 
> Assistant: Amy Fitzgerald
> (217) 333-9115 / amfitzge at law.uiuc.edu
> _______________________________________________
> 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.  
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