McDonald v. Chicago

[William Funk]

That the 2d Amendment originally was at least in part, if not totally, to
protect state interests, rather than individual interests is not likely to
stop its incorporation.  After all the Establishment Clause was originally
to protect state interests, assuring that the three states with established
churches would not have them disestablished by the federal government as
well as assuring the remaining states that the federal government would not
establish a church.  But this didn't stop the Establishment Clause from
being incorporated.  

Bill Funk

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
Sent: Tuesday, February 09, 2010 3:01 PM
To: CONLAWPROF at lists.ucla.edu
Subject: McDonald v. Chicago

 

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/

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