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An ... inventive approach
(via Prof. Joe Olson). Prof. Jim Chen has a brief PowerPoint on an article on which he's working (see works in progress, bottom of his page). It appears to argue that the 14th Amendment repealed the Second rather than incorporating it. Argument is that the 14th, by including clauses punishing former Confederates, outmoded the right to revolution which, he argues, is at the heart of the Second Amendment.
You have to understand that legal scholars love to search for a new argument, and that in some areas of legal scholarship you get to the level reached by art over the last century, where the core is not so much substance as showing off a new style. It's not so much "here is a detailed portrait from which you can gather, not only what the man looked like, but also read much of his personality," as it is "hey, I can depict a field of flowers with dots of light," or even "admire these vertical strips of color." Here, it becomes "look at how I can play with logic and wording and history" rather than "here is what the wording or history indicates."
The "right of revolution" was always a difficult logical concept. At its core ... if you succeed, you've exercised a right, and are a founding father. If you fail, you're a traitor. Hmm.. sort of like internal gun group politics. The problem with Prof. Chen's argument is that the Second isn't directly over revolution. Constitutional rights are about *what risks* we are willing to take to secure freedom. At some level, freedom of expression, association and arms, are about what risks the Framers thought acceptable, and necessary, to secure a free republic.
Comments
I find it hard to take Chen seriously since the process for revising the Constitution provides for an explicit means to change the content of the document, and the Second Amendment was not explicity changed. The 18th and 21st Amendments show how it is to be done. The 14th Amendment says nothing specifically about the 2nd Amendment, therefore Chen's (pitifully weak attempt at an) argument is wishful thinking at best - kind of like the gun-grabbers attempt to change the plain meaning of the words in the Second Amendment. I guess on the "strength" of his new "scholarship" someone will pay for him to travel to a colloquium somewhere nice to expound on this "theory." Good for him personally, bad for serious students of the Constitution.
Posted by: RKV at July 17, 2006 11:29 AM
The debate about passing the 14th amendment centered in large part around the need to protect the RKBA of freed slaves.
His argument is also stupid because the 2nd doesnt recognize a right to rebel, it recognizes a right to have weapons. To argue that an implicit withdrawl of a "right to rebel" somehow infringes upon a clearly stated "right to keep and bear arms" is silly at best.
One could also argue that all rights (especially RKBA and rebellion) are god given, and any tyranny would outlaw the right to rebel against its authority. The test has to be one of whether the authorities or the rebels claim a greater share of the hearts and minds of the people. The legitimacy of rebellion is not one for the courts or legislature to decide.
Posted by: beerslurpy at July 17, 2006 10:39 PM
Read: Government by Judiciary, The Transformation of the Fourteenth Amendment; Raoul Berger, Jarvard University Press, 1977.
The sitting consitutional convention (aka Supreme Court) has entirely re-written the amendment that was actually passed. Berger's immensly scholarly work looks at the debate in the Congrs. and in the various states. The goal of the amendment was to insure that contracts entered into by Negroes would have the same force in law as contracts entered into by Caucasians.
Posted by: Jack Willis at July 21, 2006 03:19 AM