McDonald v. Chicago

[Raymond Kessler]

You're nearly two years behind.  The points your are making about the
militia were rejected in D.C. v. Heller (2008).  Many of those issues were
settled in the militia clauses.

 

Ray Kessler

Prof. of  Criminal Justice

Sul Ross State Univ.

 

 

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
Sent: Monday, March 01, 2010 2:19 PM
To: conlawprof at lists.ucla.edu
Subject: FW: McDonald v. Chicago

 

            The Supreme Court will hear oral argument tomorrow on whether
the 2d Amendment can be imposed against the states, to upset Chicago's hand
gun ban.    I am hoping to convince you that the 2d Amendment cannot be
imposed against Chicago.  The Amendment written o respond to the demands for
power to the state army, that is, the militia.    . "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?"  The state's
rights aspects of the amendment are strong enough that it is a state
decision whether the militia can take their muskets home after the muster or
must leave them in the armory. 

            I am hoping to persuade you all.     

National Law Journal

Select 'Print' in your browser menu to print this document.

Copyright 2009. Incisive Media US Properties, LLC. All rights reserved.
National Law Journal Online
Page printed from:  <http://www.nlj.com> http://www.nlj.com

  _____  

 

Guns, virtuous history and Internet searches

Calvin H. Johnson
March 01, 2010


The U.S. Supreme Court will soon decide in McDonald v. Chicago whether the
Second Amendment right to bear arms applies against the states. The case is
set for oral argument on March 2. Attorneys for Otis McDonald, seeking to
overturn Chicago's ban on handguns, have argued that the Court should not
use research based on digital searches and should rely solely on established
secondary histories. Virtuous history, however, should always check its
prior conclusions against the surviving evidence from the adoption of the
Constitution. The new digital searches allow us to collect a very large
sample of the original evidence in a very short period of time.

The digital searches lend support to Chicago, which is defending its handgun
ban. The issue at stake in the constitutional debates was preservation of
the state power by preserving the militias. The Supreme Court has held that
the Second Amendment serves individual rights, but the Second Amendment also
serves states' rights. The word "militia," the digital searches show, meant
the state army. To the extent that it is a state's right that is being
served by the amendment, it is a state decision, for example, whether the
militia may take home their muskets after a muster or must leave them in the
armory. To the extent that preservation of the state militia is an important
historical purpose, the Second Amendment has no power to tell Virginia,
Georgia or Chicago (an entity within Illinois) what to do.

The new technology of digital searches means it increasingly easy to collect
the surviving documents from the adoption of our Constitution. The superb
Library of Congress site, A Century of Lawmaking, has put about 40% of the
critical documents online, where they are available for free, day or night.
http://memory.loc.gov/ammem/amlaw/. Some other great collections of the
newspaper debates and founders' papers are, alas, not free, but they are at
least available through major research libraries. 

Two generations ago, a serious scholar of the Constitution's adoption had to
drive 100,000 miles to visit archives from Georgia to New Hampshire.
Collecting 100 hits was seven years' work. History once reflected those
limitations. Even good historians overgeneralized from a single source,
because each find was so hard to get. Even good historians had to rely on
the secondary literature.

History needs to be very skeptical about the secondary literature.
Historical writing can be like gossip, distorting the original message with
each repetition. Prior works had inevitable biases they could not themselves
see, but it once took too much effort to go behind their conclusions.

Digital searches will allow more virtuous history. Digital searches make it
possible to collect hundreds of examples of the use of key words and phrases
in a matter of hours. Today, one can test secondary sources against a large
collection of documents within easy Internet reach.

Digital searches will also check on the lawyers. Advocates cherry-pick
evidence. We need to be especially diligent to prevent "Barbie dolls in the
archeological dig," whereby advocates read 21st century artifacts and ideas
into the historical record. Having buried the Barbie doll, the lawyer comes
back the next day, picks it up, and says "See what I found? You are bound by
it." The best remedy for biased evidence is more evidence, and the best way
to collect more of the original evidence is by digital search. 

Searches sometimes yield marvelous surprises: Consider the 79 items from a
Congressional Library site search for the word "militia" in Elliot's
standard collection of the ratification debates. 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 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. 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. Access to the original sources by digital searches helps
us reach that result.

Calvin Johnson is the Andrews & Kurth Centennial Professor of Law at the
University of Texas School of Law.

 

 

 

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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