Leonard Levy's "Origins of the Bill of Rights"
Just got Leonard Levy's "Origins of the Bill of Rights." (He's the late, great legal historian who some years ago won the Pulitzer for his history of the 5th Amendment). Levy devotes an entire chapter to the Second Amendment, arguing that it's an individual right. He says that the claim that Miller v. US ruled for a collective right "misleads." He rejects claims that "bear arms" (as opposed to "keep") relates only to military use, pointing out that the Pennsylvania minority's demand for a bill of rights used "bear arms" to describe use in self-defense and even hunting, and that PA at the point in time was the only State without a militia organization (the large Quaker population and its passifism accounting for that).
A WII vet himself, Levy added that "If all that was meant was the right to be a soldier or to serve in the military, whether in the militia or in the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The 'right' to be a soldier does not make much sense."
More thoughts, on the interface of Levy and Amar.....
As I posted blow, Amar makes the argument that the 14th Amendment was meant to incorporate the bill of rights and make it applicable to the States, but that not every provisio must be mechanically applied. He argues that some provisions of the bill of rights were meant as a statement of universal human rights, while others were meant only as special bulwarks against this new national government. Amar boldly suggests that the barrier against establishing a religion is one of the latter, since Congress is forbidden to make any law "respecting" an establishment, and many States had established churches, so this prevents Congress not only from establishing a religion, but also prevents it from interfering with States that had established one.
While not touching upon Amar's analysis, Levy points out that many early States also had extensive restrictions on freedom of the press and speech, in the form of sedition statutes that allowed prosecution for political expression. In fact, the big debate in the early States was whether truth was a defense or not (the English rule was still being followed in some States, which held that truth was an aggravation, not a defense! Why, the fact that an embarassing fact is true just worsens the harms to that reputation of a government official, and makes it harder for him to rebut!)
But, just a dabbling with this thought: how does the Bill of Rights use the term "right" as opposed to simply saying "the government can't do this"?
"Right": Second Amendment, Fourth Amendment (unreasonable searches), Sixth Amendment (speedy and public trial, criminal jury trials, confrontation with accuser, right to counsel), Ninth Amendment (rights other than those set out).
"Don't do it": First Amendment religion clause, Third Amendment (quartering of troops), Fifth Amendment (criminal grand jury, self-incrimination, double jeopardy, due process, private property taken for public use), Eighth Amendment (excessive bail, cruel and unusual punishments).
"A bit of each": First Amendment (expression and association: "Congress shall make no law," which is "don't do it," but relating to "freedom of speech, or of the press", or to "the right" to assemble and petition).
Haven't thought this thru, but it certainly seems that Amar's basis for distinction has some problems, and that at the very least it's hard to distinguish based on use of the word "rights" as opposed to a prohibition on (Federal) action. I tend to think that any distinction will have to key upon a functional analysis rather than the text and history, since neither really gives clear guidance.