krooseve at law.upenn.edu
Thu Jun 26 11:33:55 PDT 2008
And what follows from that? It seems to me to support an argument that
the right was granted to the people in danger of having their guns taken
away, i.e., militia members, since Congress obviously couldn't reach
anyone else. Not that I would make that argument, but I'm sure you
wouldn't either, so I'm wondering what the point is.
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com]
Sent: Thursday, June 26, 2008 2:27 PM
To: marty.lederman at comcast.net; lsolum at illinois.edu; Kermit Roosevelt
Cc: DFRANKL2 at depaul.edu; Conlawprof at lists.ucla.edu
Subject: Re: Heller question
Congress has no specific enumerated power to regulate private ownership
of firearms, and modern Commerce Clause jurisprudence was 150 years and
a lot of twisted reasoning away. Therefore, easily the biggest concern
for those concerned with the right to bear arms would have been that
Congress would have claimed that it's other Article I, Section 8
enumerated powers ("To make rules for the government and regulation of
the land and naval forces; To provide for calling forth the militia to
execute the laws of the union, suppress insurrections and repel
invasions; To provide for organizing, arming, and disciplining, the
militia, and for governing such part of them as may be employed in the
service of the United States, reserving to the states respectively, the
appointment of the officers, and the authority of training the militia
according to the discipline prescribed by Congress) gave it power to
disarm the citzenry. It therefore makes sense that the Second Amendment
would emphasize that the existence of the militia not only doesn't give
Congress that power, but the existence of the militia is a reason to
prohibit such a policy.
David E. Bernstein
George Mason University School of Law
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