The Checks and Balances of Armed Self-Preservation. Synposis says it gives an analysis of the division of armed defensive forces within the modern system of checks and balances in American government. Discussion of possible analogies to be drawn from that division of force for interpreting the Second Amendment and whether it creates an individual right to keep and to bear arms or only a collective right to armaments in organized military units such as the National Guard.
And Randy Barnett's upcoming article The People or the State?: Chisholm v. Georgia and Popular Sovereignty is online. Chisholm was the Supreme Court's first big con law case, and held that States were subject to suit in federal court (notwithstanding the argument, made in the Federalist Papers, that sovereign immunity would block this -- and a result overridden by the 11th Amendment).
Prof. Barnett's article asks why this case is usually overlooked in teaching con law. (If I remember correctly, when I was taught it the case got about 2-3 sentences, this is what it held, and the 11th Amendment resulted).
Checks and Balances
The arming of the people and reliance upon a people's militia always seemed to me a part of the Framers distribution of direct power into the hands of the public at large.
The milita distributes executive power into the hands of the public. Even though that power is moderated by the State appointment of militia officers.
Juries distributes judicial power into the hands of the public. Even though that power is moderated by the State appointment of judges.
Voting distributes legislative power into the hands of the public. Even though that power is moderated by the representatives who serve in Congress.
Posted by: Brad at May 26, 2007 04:51 PM
The author asserts that the Supreme Court may not take into account that 18th century America didn't have police forces , but the question will be whether today's police forces are sufficient.
It seems to me that statement is nothing less than saying the Supreme court is actually deciding whether standing armies are sufficient instead of a well regulated militia. In Virginia the Courts have held that police forces are paramilitary organizations. In fact as a professional full time armed force, police forces would be considered standing armies by 18th century standards.
Posted by: Rudy DiGiacinto at May 26, 2007 10:10 PM