Heller question

Thu Jun 26 12:28:45 PDT 2008

Scalia's explanation for the preamble -- that it was simply meant to state the reason for *codifying* the right, while the core meaning of the right was personal self-defense -- is very imaginative, but quite unconvincing.  The closest analogues and immediate precursors of the Second Amendment may be found in the state declarations of rights adopted during the Revolutionary era.  And those provisions generally tied the right to the militia.  For example, here is section 13 of the Virginia Declaration of Rights of 1776:  

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

This provision formed the basis of the Virginia Convention's proposal for an amendment to the Federal Constitution, which in turn influenced Madison's draft of the Second Amendment:

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country:  but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

In light of this history, it seems pretty clear to me that Scalia is wrong when he claims that the preamble of the Second Amendment merely indicates that the need for the militia to have arms was simply the reason for codifying the right -- instead, that's what the right was all about.

Steve

Steven J. Heyman
Professor of Law
Chicago-Kent College of Law
565 W. Adams Street
Chicago, IL 60661
(312) 906-5228
sheyman at kentlaw.edu

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Lawrence Solum
Sent: Thu 6/26/2008 2:04 PM
To: Franklin, David
Cc: Conlawprof at lists.ucla.edu
Subject: [POSSIBLE SPAM]  Re: Heller question

I suspect we are approaching and perhpas have passed the point of
dialectical impasse.

David Franklin's question goes to the point whether the Second is more
plausibly read as creating a new right or recognizing an existing
right.  As I read the historical evidence (caveat: based almost
entirely on secondary sources) and based on my understanding of
general theory of the Bill of Rights, the notion that the right to
keep and bear arms was a "creation" of the Bill of Rights would have
been highly unusual.  The text is certainly consistent with (and
indeed seems supportive of) the recognition view.

On 6/26/08, Franklin, David <DFRANKL2 at depaul.edu> wrote:
> I'll take one more shot at sharpening my objection, and then I promise
> to stop belaboring this.
>
> One can make sense of Scalia's argument at slip op. 26 by paraphrasing
> the Amendment this way: "Notwithstanding Congress's Article I powers
> over the militia, which people are understandably worried about, we're
> codifying this amendment to make clear that Congress shall not have the
> power to infringe the preexisting right of the people to keep and bear
> arms (which they enjoy for all sorts of reasons that go beyond militia
> service, including self-defense)."
>
> But this seems difficult to square with what Scalia says at slip op. 3,
> which is simply that the Amendment could be paraphrased this way:
> "Because a well regulated Militia is necessary to the security of a free
> State, the right of the people to keep and bear Arms shall not be
> infringed."
>
> Doesn't Scalia severely downgrade the prefatory language from a reason
> for the right to a reason for codification of the right?  And isn't the
> former a much more plausible interpretation of the Amendment's text?
>
> DF
>
> -----Original Message-----
> From: Lawrence Solum [mailto:lsolum at gmail.com]
> Sent: Thursday, June 26, 2008 1:04 PM
> To: Kermit Roosevelt
> Cc: Franklin, David; Conlawprof at lists.ucla.edu
> Subject: Re: Heller question
>
> 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.
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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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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> >
> > Please note that messages sent to this large list cannot be viewed as
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> (rightly
> > or wrongly) forward the messages to others.
> >
>
>
> --
> 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
>

-- 
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

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