McDonald v. Chicago

[Calvin Johnson]

I did an internet search on the marvelous Congressional Library site, A Hundred Years of Lawmaking, searching for the word "militia" in Elliot's standard collection of the ratification debates, and came up with 79 hits-  a fair sample with reasonable numbers.  In those hits, "militia" is a synonym for state army controlled by the governor. Nothing from that list treats "militia" as just a group of able-bodied citizens.  The opponents of the Constitution were worried that federal government had too much power over the state militias.  "Have we the means of resisting disciplined armies," Patrick Henry demanded in Virginia, "when our only defence, the militia, is put into the hands of Congress?"  "What sovereignty is left to [New York]," Anti-Federalist Thomas Treadwell asked, "when the control of every source of revenue, and the total command of the militia, are given to the general government?"   The state militias would reign in the standing army.  Anti-Federalist George Mason worried that the Federal government would render the militia useless, in order to have a pretence to establish a standing army that was professional, permanent and worst of all, federal.
The Bill of Rights did not go so far as to restrict federal power over the state militias as Anti-Federalists wanted.  But James Madison, the author of the Bill of Rights, was prepared to offer amendments he considered safe. In context, the Second Amendment is Madison's response to the Anti-Federalists' demand to preserve state power by preserving state militias.  The Supreme Court has held the Amendment protects individual rights in part.  Still, the function is also to preserve state power, and that purpose is important enough in the original context that the Second Amendment cannot legitimately be applied against the states.  In so far as the Second Amendment is a state's right, it has no power to tell Virginia, Georgia or Chicago what to do.
I cant see much state's rights in the Constitution.  Indeed the right of state to veto border changes (often violated) and the 2d Amendment are as intense state's rights as we can find in the text.  Surely a Supreme Court dedicated to finding state's rights in the grand design would not rip open the states' rights to its militia so violently?
 Access to the original sources by digital searches helps us reach the right result.  Digital searches will allow us more virtuous History.  Virtuous History starts by casting its net widely to collect as much of the surviving evidence as it can.  Virtuous History rechecks its conclusions against the evidence, much as a laboratory science checks its hypotheses against the experimental data



Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of  Texas  School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20100209/165f4f5c/attachment.htm>