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My latest law review manuscript is up
On SSRN: The Janus-faced Second Amendment: Looking Backward to the Renaissance, Forward to the Enlightenment. I've just started circulating it to law reviews. It has two themes:
1. The 2A has two clauses because it had two independent purposes, each with a different constituency. Classical Republicans wanted a guarantee against the militia, as a system, being neglected. Jeffersonians want a guarantee of an individual right to arms. For most of the Framing period, a person, group, or State chose one of the other. With the Virginia ratifying convention of 1788, someone finally realized they could do both and please both groups. To construe the right to arms as limited to militia service (as the Heller dissenters did) is to misconstrue the history. They were separate ideas, and to the extent we can assign importance, the right to arms was universally seen as more important.
2. In any event, the modern National Guard is emphatically not the militia of the Constitution. The militia were a local body, the citizenry, under command of the governor, and only able to be called into Federal service for three reasons, all designed to involve service within the U.S. (repel invasion, suppress insurrection, enforce the laws of the Union). Under the Constitution, they were to be trained by the States, and led by officers appointed by the States. As the Heller dissent (this time correctly) notes, the militia was meant to be a counterpoise to Congress's power to create an army. Madison in Federal No. 46 points this out clearly.
The modern NG was created by 20th century statutes as a Federal force, a reserve component of the Army, with Federal training and Federally-approved officers, able to be called into Federal service for any reason, including foreign service. It was specifically created pursuant to the Congressional power to create armies.
UPDATE: "WWII" was a typo, should have been WWI. Thanks!
6 Comments | Leave a comment
The militia clause was a "consolation prize" to the anti-Federalists who didn't get anything they wanted vis-à-vis the militia, states, and standing army.
The Congress kept every bit of their power over the militia and the power to raise a standing army. The 2A didn't change any of that so the best that can be said of the militia clause is that it recognized the anti-Federalists preference for the militia.
I think the 2A reflects the idea that important part was the individual rights part, but that the prevailing view - that of the Federalists - was that the militia wasn't important enough to guarantee more explicitly than making sure the people could/would be armed.
This, my view, has been formed by 20+ years of reading, including your work, which heavily influenced it.
Not sure, but..
"The test of World War II led to a variety of statutory changes, culminating in 1933, that converted the Guard into a reserve Federal force."
Should that read WW I ?
Or should the date be 1943?
Regards,
A better reading of the second is that it covers three topics.
First: A well regulated Militia ... SHALL NOT be infringed.
Second: The Right of the People to keep Arms SHALL NOT be infringed.
Third: The Right of the People to bear Arms SHALL NOT be infringed.
In addition, the best reading of the phrase 'free State' is that not only a reference to a Body-politic but more importantly and more properly a reference to Liberty/Freedom as in a free State of Being. Limiting these clauses as many do weakens the entire concept of inalienable Rights endowed by the Creator including, but not limited to, the Right to Life, Liberty and the Pursuit of Happiness (originally as the acquisition of private property).
The authors of the Bill of Rights saw the People as the sole best authority to maintain their lives, liberties, and retention of private property, that the government always corrupts and ends up usurping powers.
As FWB noted above, the Second Amendment encompasses three distinct freedoms. The militia freedom rises out of, and relies upon the latter two freedoms not being infringed.
This is nothing new, it's well understood that the First Amendment encompasses five freedoms. This works similar to how it would be difficult to truly have a freedom of religion without freedom of assembly.
"Free State" is an important part of the entire amendment, and tends to be overlooked by those who fancifully overemphasize the "Well Regulated Militia" and neglected by those who focus on the more effectual "Shall Not Be Infringed."
If you misinterpret "Well Regulated" as "being burdened with restrictions" as it tends to be rendered by progressive statists, you have to reckon with "Being Necessary for the Security of a Free State." If a militia's purpose is to keep a free state free, but the state is given unlimited power to "regulate" the militia to the point that it cannot function, then your free state really isn't free.
So, the security of a free state is one goal of the amendment.
The militia is a means to that goal.
The individual right to keep and bear arms is how you provide for that means. Without it, a free state cannot remain free.
Dave,
Thanks kindly for the link. I enjoy reading your papers and value your scholarship on the history of this issue.