Prof. Levinson on the Second Amendment & militia
Prof. Sandy Levinson has a post over at Balkanization.
His ending: "gain, to be absolutely clear: I would much prefer a world in which Hezbollah devoted itself only to doing good works for Lebanese citizens and where the Mahdi militia laid down its arms and acquiesced to the sovereignty of an Iraqi government that indeed fairly represented all of the groups within Iraqi society. But this is to engage in fantasy, alas. One might at least try to understand why control over the means of violence is perhaps the central political issue in any serious design of a constitution for a divided society. This is why the Second Amendment should be front and center in any consideration of the nature of our own original constitutional system, whatever it should mean today, and how our own history might lead us to a more complex and nuanced view of what we can plausibly demand and expect to receive from the deadly serious political groups in such countries as Lebanon and Iraq."
[Hat tip to Saul Cornell]
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Debate on Saul Cornell's "A Well Regulated Militia"
Oxford Press has posted a debate between Saul Cornell and Mark Tushnet, relating to Cornell's new book.
I've read (albeit quickly) "A Well Regulated Militia" and, much to my surprise, rather liked it. The research is good, the style is excellent. The worst I could say of it is that he plays down information I would play up (and he, of course, might say the same of me). Since Cornell is, to say the least, on the other side, I found this a pleasant surprise. I learned something -- which is rare, after you've studied an area for 30+ years. He draws an interesting distinction between Blackstone's summary of self defense and its American evolution, for instance (Blackstone said that a person must be at risk of death, etc., whereas the American rule, which he traces to a particular case, became one must *reasonably fear* death, etc.. The first would require proof of an actual menace -- altho I'd assume it'd allow proof of things the defender did not then know -- while the latter requires a reasonable fear -- so unknown matters are irrelevant, but reasonable perception replaces a demonstration of fact).
His thesis appears to be--
1. Yes, the 2A is an individual right. (The first quarter of the book could have come straight from Steve Halbrook's writings).
2. But it was one originally linked to militia duty (he goes against 14th Amendment privileges &immunities incorporation).
3. Hence (and here is a problem for him) it is subject to extensive regulation.
As to (1), I think it marks a collapse of the collective rights position. When an advocate for gun control has to concede this and discard collective rights, the main defenses have been breached.
As to (2), largely correct (altho he plays down indications to the contrary, that to the early Americans the concept of self-defense lumped togther defense against tyranny and defense against criminals). But most the discussions were along the lines of militia-tyranny. After all, they had just fought a revolution. Nobody in 1787 was much worried about the new central government would disarm people in order to let street thugs rob them. That would have seemed idiotic. Only in the 20th century would it seem to make good sense.
As to (3), there's the problem. As a historian, Cornell need not be overly concerned here -- it deals not with history but what use a legal system makes of history.
I am sure that if we examined the historical record relating to first amendment freedom of the press, we would find it was all in the context of political expression. And the record relating to the establishment clause would mostly relate to the risk of Congress establishing a national church.
But when Bork suggested that the first amendment could be seen as protecting only political speech (i.e., not pornography, defamation, etc.), and Meese suggested that the establishment clause did not forbid government actions that promoted *all* churches without discrimination, they were strongly, and I think properly, criticized.
[Update: Clayton Cramer comments on comments about lack of a professional police force -- since my antispam software for some reason stopped his comment, I've added it to "Read more," below]
[UPDATE: I think both were properly criticized because, in my experience, freedom is easily lost and much more difficult to regain, and the framers, in the bill of rights, were seeking only to stake out the most important freedoms. Hence an expressly-guaranteed right should be protected to its fullest. Something expressly stated should be protected as stated, and not curtailed by an argument that the framers didn't stop to consider (at least in the limited written evidence we have at hand) this or that application.]
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Poll of academic types
Todd Zywicki, on the Volokh Conspiracy, links to a pdf of a survey of political attitudes of over 1200 academics. As would be expected, (1) they are overwhelmingly left and Democrat and (2) this has increased significantly since 1970. (Surveys in 1972 indicated Demos outnumbered Repubs in academia by 3.5 to 1; this study indicates today it's 8 to 1).
The survey appraised left-right by asking whether respondents favored or disfavored certain legislative measures. Strongly support = 1, strongly oppose = 5, so the lower the score the more the support.
The most striking response was related to laws restricting gun ownership. Demo faculty gave that a 1.3 (meaning virtually all "strongly support" it) and the minority Repub faculty gave it 3.14 (basically a tie).
Compare that to support for laws against heroin, cocaine and hard drugs. Demos gave them 2.3, Repubs 2.0, basically both giving mild support.
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Video of American Enterprise Institute 2d Amendment Symposium
In 2003, the American Enterprise Institute in Washington DC hosted a symposium on the Second Amendment. I had it videotaped, and have finally completed organizing the video, compressing it, and creating a quick webpage of the video. Speakers included Professors Akhil Amar of Yale Law School, Sanford Levinson of U. of Texas Law School, and Robert Cottrol of George Washington Univ. Law School. Caveat: you need high speed or a lot of time -- even trimmed, the files are 6-10 megs.
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Geo. Mason Univ. symposium
GMU had its symposium on Saturday, which they said they hoped would be the first but not the only such conference. I was a bit groggy, since I was jet-lagged three hours, the catering service had failed, and hence there was no coffee. I'll just list what I remember as major points:
Steve Halbrook discussed the Seegers case, challenging the DC gun law, and which was dismissed on claims the plaintiffs had no standing. DC Circuit affirmed, altho four judges (including a fellow named John Roberts) voted for rehearing en banc. He's either filed or will file a petition for cert. (I forget now which). Standing claim will include the theory that I've blogged earlier, a modification of aesthetic standing used in enviro cases.
Joyce Malcolm discussed the loss of the right to self-defense in Britain. The case of Tony Martin was of course a topic -- he's a farmer who, after being burglarized six times with no results from the police, shot two burglars coming up the stairs of his home. He was sentenced to life for killing one and ten years for killing the other. The surviving burglar got, I think, three years, and is now suing him (with the gov't helping to pay the burglar's attorney). The BBC has a website on self defense which counsels that if you bump into a burglar in the dark and hit him with a crowbar (about the best tool you're allowed to have) once, you can argue to the jury (note the assumption you will be tried for it) that you used excessive force (note the assumption there) in a panic, and they might let you off. But do not, repeat not, hit him a second time, or you're surely sunk.
As the British statutes prohibit carrying *anything* with the purpose of self-defense, you can be convicted of an arms law violation for carrying a walking stick (if not obviously needed for walking), etc, and people have been so charged.
British TV had a poll on what law the people most want enacted, and a member of Parliament had pledged to introduce whatever won. The clear winner was a bill to allow use of any force not grossly disproportionate, in defense of one's home. The MP refused, saying this was appalling.
She noted the effect: British crime is skyrocketing, and you are now six times more likely to be mugged in London as in NY City.
Randy Barnett had some interesting thoughts. If the RTKBA were recognized as a constitutional right, it would still be subject to some regulation. Probably most would be reviewed under "strict scrutiny," where the gov't must prove the law serves a compelling gov't interest, and is narrowly tailored to serve that interest without fall-out in other areas of the right involved. The fact that gun control advocates fight against application of this standard suggests to him that in fact they do not ultimately want reasonable regulation, or only laws that serve a compelling interest and are tailored to do that. He added that most federal regs now would probably pass that test -- but only because gun owners, thru the political process, have protected their rights in most cases. He noted that an activity really can't be outlawed, or tightly regulated, if it is widespread, due to political opposition. Attempts to restrict smoking by law only came about after most Americans stopped smoking. Thus we have the paradox that government can only act against a perceived "problem" if it is a small one!
Speaking for "the other side" was Saul Cornell. Unfortunately, he spoke on the first panel, when our problems with caffeine deprivation were worst. I do recall he argued a theory which was a variation on collective right, namely it is an individual right to serve the state in a militia. (The same as collective right in terms of result, but called an individual right. I guess this means that everyone has a right to serve in the Nat'l Guard whether the Guard wants them or not. Maybe we could get a gay triple amputee, 65 yrs old, to try to enlist and test it). He cited the 1776 Penn. Declaration of Rights, which referred to a right to bear arms for defense of themselves and the state, pointed out that the Pa Const. referred to bear arms in the militiary sense (conscientious objectors can be exempted from bearing arms). Where this gets us on "keep" arms may be another question.
UPDATE: Saul Cornell just emailed me the following:
Sorry we did not get a chance to chat more at the conference. I think it is important to note that the keep and bear formulation only emerges after Pennsylvania. While some read keep and bear as keep and/or bear I read it as keep and bear those arms necessary to meet the legal obligation to serve in the militia. If we recreate an 18th century style militia then that might well mean everyone gets an M-16-like weapon. This would be one obvious difference between a civic conception and the modern collective rights view. I also think the civic conception makes domestic disarmament less likely since it is harder to imagine how you could have an 18th century style militia if you had a British style policy regarding firearms. Clearly there was broad agreement among Americans that British style game laws were not consistent with the American conception of the right to keep and bear arms. [DTH note: the British Game Act of 1671, repealed in relevant part after the 1688 Declaration of Rights, forbade anyone with less than a certain value of property to own a gun].
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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.....
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