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Active Liberty and the Second Amendment. The media and politics:

In today's Legal Times, I have an article which applies Justice Stephen Breyer's methodology in his book "Active Liberty" to the Second Amendment. The article argues that the interpretive approach of Active Liberty helps to understand why both clauses of the Second Amendment point to a meaningful individual right for the 21st century.

In a column for Saturday's Rocky Mountain News, I offered readers some tips for following politics in the new media environment. Some of the suggestions will be familiar to readers who know the Internet well. But at least one may not be: There is no subsitute for going to listen to a candidate speak in person.

dwlawson (www):
David,
Great article. Also it was great to meet you at the GRPC.

I haven't heard much with regards to the government's responsibility to not violate the first clause of the Second Amendment.

It shouldn't be the question of whether the lack of a militia means the Second is a dead letter.

The question should be, isn't the militia mandated by the Second Amendment? Isn't it true that the second clause of the Second Amendment is there to prevent the government from violating the first clause by neglect of the militia?

The argument presented that the Second is a dead letter by the demise of the militia should be laughed out of the court.
1.14.2008 6:09pm
Ben P (mail):

There is no subsitute for going to listen to a candidate speak in person.


And for those of us that don't happen to live in a state with a large city or early primary and that is generally considered to be solidly in republican hands?

As best I can recall I can count the number of visits both candidates made to my state in 2004 on one hand, maybe two if I missed a few.


Of course CSPAN gives me the whole speech, but it doesn't convey the feeling of a rally.
1.14.2008 6:42pm
Leif (mail):
I've seen the Second Amendment argument of Thomas Cooley quoted many times as it is in this article, but find the argument quite perplexing.

The article quotes Cooley as saying that if Second Amendment rights were limited to those enrolled in a militia, "the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check."

In 1789, liability for militia duty was determined by STATE law. But it was FEDERAL action that was restricted by the amendment's "negative right," and it therefore it must be the federal government that the guaranty was "meant to hold in check."

Cooley seems to be saying that the guaranty (against the federal government) could be defeated by the "action or neglect to act" of the federal government itself -- and yet that it was somehow the state government's fault. That all sounds nonsensical.

Elsewhere in his work (The General Principles of Constitutional Law) Cooley makes it clear that he understands the Bill of Rights to be a restraint upon the federal government only:

"For a proper understanding of these provisions it is essential to keep in mind that their purpose, as well as that of similar provisions in the original instrument, was to put it out of the power of the government now being created to violate the fundamental rights of the people who were to be subjected to its authority. They constitute limitations, therefore, upon the Federal government only."
1.15.2008 3:15am
neurodoc:
The RMN piece is a good one. I don't have a lot of sitzfleisch, though, and most candidates' stump speechs take more than I have. It doesn't help that most of those stump speeches are polished to such an extent that little is left of much consequence and one isn't likely to gain much by paying too close attention and it is more about the "experience" of the person, which can be so misleading. Aside from "ideologic" content, George W. is so godawful a speaker, that I find it painful to listen to him and have never been able to for more than a few minutes at a time, even on important occasions, and I let the newspapers summarize what he has said for me. However good or bad what he said may have been, it almost always reads better.
1.15.2008 3:18am
Clayton E. Cramer (mail) (www):

In 1789, liability for militia duty was determined by STATE law. But it was FEDERAL action that was restricted by the amendment's "negative right," and it therefore it must be the federal government that the guaranty was "meant to hold in check."
It is true that until 1792, when Congress passed the Militia Act, state laws determined who was required to serve in the militia. But Art. I, sec. 8 of the Cosntitution grants authority to the federal government to determine who the militia will be:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
That Congress did not immediately take advantage of this authority does not mean that the state authority is the one that matters. There was no question when Houston v. Moore (1820) was decided that federal authority was paramount--and as the concurring opinion in that case makes clear, Art. I, sec. 8 defined authority over the militia--and the Second Amendment changed nothing.
1.16.2008 5:15pm
Clayton E. Cramer (mail) (www):

The question should be, isn't the militia mandated by the Second Amendment? Isn't it true that the second clause of the Second Amendment is there to prevent the government from violating the first clause by neglect of the militia?
Some of the requests from the states did have a specific demand that the new government rely on the militia, and a couple (South Carolina, for example) requested that a 2/3 vote of both houses of Congress be required to keep a standing army in peacetime. What Madison introduced to the House was considerably softened. What is now the first clause is more like a suggestion than a request.
1.16.2008 5:17pm