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Jack Rakove vs. Me on the Second Amendment,

at BloggingHeads. Here's my main disagreement with Jack: Unless I'm mistaken, Jack thinks that (1) the Second Amendment secures a right only to members of the militia, not to the people as a whole, and (2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define. The militia, Jack seems to be arguing, "was what [the Framers] meant to allow future Congresses, in their wisdom, to replace."

Yet this means that the Second Amendment secures a right against Congress -- but secures it only to those people whom Congress chooses to empower this way. That, in my view, is a mighty odd reading of the Second Amendment, which basically lets it be nullified by the very body that it was created to constrain.

And unless I'm mistaken, Jack basically acknowledged that the Amendment was indeed this empty. I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like. In any case, watch our discussion and see what you think.

EIDE_Interface (mail):
It's ok, just keep the meme going.
7.8.2008 3:11pm
DCTenor1:
I don't understand why we're still debating this. ;-)
7.8.2008 3:25pm
Jim at FSU (mail):
For the same reason we kept debating race relations after the civil war ended. So long as otherwise intelligent people continue to espouse these irrational views in public, we have a duty to refute them.

Plus, this debate helps flesh out the issues and points future courts in the right direction in terms of what questions to ask.
7.8.2008 3:31pm
Originalism Is Useful (mail):
(2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define. The militia, Jack seems to be arguing, "was what [the Framers] meant to allow future Congresses, in their wisdom, to replace."

It is very odd that a liberal is forced to argue that Congress can deprive black people of individual rights. I don't really see that anywhere in the Bill of Rights.
7.8.2008 3:37pm
MarkField (mail):

I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like.


The Fourth? That doesn't strike me as much of an example these days. Nor would the 8th, at least according to Scalia and half the commenters on this site.
7.8.2008 3:40pm
Repeal 16-17 (mail):
[T]his means that the Second Amendment secures a right against Congress -- but secures it only to those people whom Congress chooses to empower this way.

Replace the word "Second" with the word "First" and you have the reasoning behind McCain-Feingold. The Congress has alot of difficulty believing that it is NOT politically omnipotent. Sadly, there are people like Jack who think like the Congress.
7.8.2008 3:41pm
Constructively Reasonable (www):
The last time I checked, the 2d Amendment was in the Bill of Rights, which constrains Congress from interfering with individual rights.

Using Mr. Rakove's logic, then, Congress shall be able to define who shall be free from unreasonable search and seizure, and then ban that freedom from the rest. In the same vain, Congress shall be able to define who has the right of free speech (perhaps only government or pro-party officals?) and then ban the speech of those not in the protected class.

Mr. Rakove's America is frightening...
7.8.2008 3:43pm
Greedy Clerk (mail):
Jack basically acknowledged that the Amendment was indeed this empty. I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like.

I agree that was his position on the 2nd Amendment, but I don't think you ever asked him if that was his position on the other amendments in the Bill of Rights (and particularly those that use "the people"). You definitely assumed that was his position and he did not deny it, but I don't think you ever asked the question that I would like to hear from those espousing his positions: Why is the 2nd Amendment different? I think there is some currency to the idea that all of the Bill of Rights were considered hortatory by the some of the Framers, and some of them definitely would not have thought they could be enforced in court against the federal government (and obviously the state governments as well) or at least against an Act of Congress. That view however has been rejected. However, I want to know is if this guy actually believes that just the 2nd Amendment is hortatory or if he believes the First (and others) is too. Under his explanation of the Second Amendment, I don't see how he wouldn't take the exact same view of the 1st:, i.e., it was just meant to reassure those who thought the Constitution gave Congress the power to regulate religion and speech which was never intended. Certinaly, it was not mmeant ot create judicially enforceable rights. That would be what I would expect to hear from someone like him taking his view of the Bill of Rights. Again, however, you never asked him directly if he thought the 1st, 4th, etc. were hortatory or not. Apologize if I missed it.
7.8.2008 3:48pm
Charlie (Colorado) (mail):

In the same vain, Congress shall be able to define who has the right of free speech (perhaps only government or pro-party officals?) and then ban the speech of those not in the protected class.


Well, isn't this the effect of Buckley and McCain-Feingold? Or make your own list.
7.8.2008 3:48pm
Greedy Clerk (mail):
Well, isn't this the effect of Buckley and McCain-Feingold? Or make your own list.

No, it's not. I don't want to veer off on a different subject, but if you think Buckly &McCain-Feingold take that view of the 1st Amendment, you need to read those opinions a lot closer. Further, if you think those opinions treat the 1st Amendment in a manner similar to the way this historian would treat the 2nd Amendment then you really, really, really need to read things closer.
7.8.2008 3:52pm
josh:
"Jack thinks that (1) the Second Amendment secures a right only to members of the militia, not to the people as a whole, and (2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define."

This post seems to address (and criticize) only his second point. That seems fair, but what about his first point?

Jim at FSU says "So long as otherwise intelligent people continue to espouse these irrational views in public, we have a duty to refute them."

I'm not sure I'd call Jack's reading of the 2nd A "irrational" at least as to its application only to militias. A 5-4 S Ct decision to the contrary doesn't make it "irrational."

I've never seen too much discussion on this blog about what I think is the most important issue -- the militia language. The language about "keep and bear arms" and "shall not be infringed" seems really secondary to me (no pun intended).
7.8.2008 3:59pm
DavidBMIT:
I felt the argument suffered because Dr. Rakove did not have a coherent understanding of law. I did find the part I watched insightful. But then the argument began to repeat over and over. So I stopped watching.

I think Dr. Rakove made (or implied) an excellent point. The 2nd Amendment was surely ratified with the threat of raids from natives and settlers of foreign powers in mind.

This situation is clearly no longer extant. The questions in our times become: Is the amendment no longer meaningful because that key situation does not exist? Or does the amendment more refer to a certain sort of threat to the public peace? One could easily argue that having your DC residence under the threat of gang violence is little different than the situation 18th century Americans faced vis-a-vis native populations.
And then a third question is even assuming that my last analogy isn't a good one, is that irrelevant because the plain text of the amendment guarantees gun rights?

I am somewhat more understanding of a certain non-expansive conception of the Second Amendment because of this diavialog(?), but I still land firmly on the side of an expansive Second Amendment.
7.8.2008 4:04pm
josh:
And is his first point really that "irrational?" I'd like to hear from Prof V here. If the milita clause reserves the right to keep and bear arms only in members of the well-regulated milita, couldn't that place in Congress the power to regulate the militia, as in the powers vested in Congress via Art I sect. 8? (see e.g., "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.")

I'm one of these liberals who doesn't feel a strong skin in the game on this issue. If the S Ct. recognizes the right anew, that's mostly fine with me. But I don't see the discussion on the most salient clause of the amendment receiving suitable treatment (and I admit not having read the opinion ... It's not an issue dear enough to my heart to go beyond the (usually) great analysis of VC)
7.8.2008 4:06pm
Tony Tutins (mail):
I can't get past "the right of the people." If it were "the right of the militia," surely the framers would have phrased it that way. The anti-individual rights side believe in a sort of "Second Amendment exceptionalism," where, alone of all its kind, the Second Amendment is purely hortatory, like the Declaration of Independence.

Taking this attitude would have saved a lot of Supreme Court effort over the years. I'm looking forward to the renewal of religious instruction in the public schools.
7.8.2008 4:11pm
Prosecutorial Indiscretion:
I'm not sure I'd call Jack's reading of the 2nd A "irrational" at least as to its application only to militias. A 5-4 S Ct decision to the contrary doesn't make it "irrational."


The 5-4 decision was not with respect to whether or not the Amendment protects an individual right; the Court was unanimous on that issue.
7.8.2008 4:13pm
Jim at FSU (mail):
Well 5-4 isn't great, but it's a huge step in the right direction from Plessy v Ferguson and the Slaughterhouse Cases.

Jack's argument is irrational because if you follow it to its natural conclusion, his argument is self-contradictory. These anti-gun interpretations of the 2nd amendment all produce results that are absurd, especially when you try to apply the same reasoning to any other enumerated right. You would have to undo an enormous body of anglo-american legal history to arrive at a reading of the 2nd amendment that doesn't embrace an individual right. It just doesn't work unless you put on blinders that start our legal history in the 1940s.

The Standard Model is the only one that can be reconciled with the founding era understanding of the right, the only one that can be reconciled with the text of the amendment and the only one that does not produce bizarre and illogical results when read in light of the rest of the constitution- especially the other parts of the bill of rights and the army and militia clauses of Art 1.
7.8.2008 4:15pm
wuzzagrunt (mail):
josh:

I'm not sure I'd call Jack's reading of the 2nd A "irrational" at least as to its application only to militias. A 5-4 S Ct decision to the contrary doesn't make it "irrational."

Actually, it was 9-0 for an individual right, unconnected to militia service. The "4" just believe that individual rights can be regulated into meaninglessness.

josh:

I've never seen too much discussion on this blog about what I think is the most important issue -- the militia language.

Really? It seems to me that these good people have thoroughly beaten this particular dead horse, and could now be said to be beating the gooey spot where the horse died.
7.8.2008 4:20pm
Greedy Clerk (mail):
You would have to undo an enormous body of anglo-american legal history to arrive at a reading of the 2nd amendment that doesn't embrace an individual right.

And that's where you are dead wrong. American legal history, yes, I would agree. Anglo? Nope. The most obvious difference between English and American Constitutional law is that in the former, the Constitution (unwritten in one document, but consisting of several things) is not, I repeat not, enforceable against the Legislature. Thus, his theory is entirely rational if viewed from an Anglo understanding of Constitutional rights. These things establish broad principles for our Legislature to govern under, but are not enforceable against the Legislature in court.
7.8.2008 4:24pm
Sarcastro (www):
Listen to me, because I am dead f--king serious when I say this:
McCain wants to put a bolt-action rifle in the hands of every able-bodied American male, so that we can be ready when the Kaiser comes for us.
7.8.2008 4:30pm
EPluribusMoney (mail):
I hope this misguided Jack Rakove is no relation to my favorite late PoliSci professor Milton Rakove at UIC. When I told him how ridiculous the Masters PoliSci work was he told me I'd be better off in law school so I quit and went.

He used to say that anyone of the "true faith" should be sure to put a star of David on your exam paper and he would adjust your grade accordingly. Of course everyone in class did so, even though it was obviously a joke.
7.8.2008 4:34pm
A. Zarkov (mail):
Rakove seems to regard 2A is some kind of constitutional boilerplate or a general statement of principles. Notice that he constantly told us what 2A isn't. As best I can remember from watching the video, he never directly answered the question as to just what Congress is prohibited from doing by 2A. Obviously he can't, so in the typical liberal style of argumentation he must rely on vagueness and metaphor. I experience this over and over when arguing with liberals. One friend starts talking about entropy (a subject he really doesn't understand) when we argue about immigration.
7.8.2008 4:43pm
wfjag:

DCTenor1:

I don't understand why we're still debating this. ;-)


Because in the good ole days when we were raised, Cold War, Ruskies goin' to come thru the Fulda Gap, take Germany and then France and cut off our access to really good beers, wines &cheeses, we were all raised on the Kill a Commie for Christ philosophy (Charleston Heston as "Moses", John Wayne as -- well, er, -- "John Wayne", etc.) Guns are fun. Talking about guns beats the hell out of trying to figure out an IP issue.


josh:

I've never seen too much discussion on this blog about what I think is the most important issue -- the militia language.


Check your state's laws on military organization. In many, maybe most, nearly all adult, competent persons are members of the state's "unorganized militia." There will also be an "organized militia" which may be the same as its National Guard, but also frequently includes its "State Guard." Many states still empower governors (or sometimes other officials, like sheriffs) to call on all members of their "militias" for various services, including service in a Posse Comitatus. Depending on the laws of the state in which you live, you may be a member of the state's militia, even if you don't know it.
7.8.2008 4:57pm
Live+Let_Live:
The discussion of what the 2nd amendment means seems silly. It is very clear language. We choose to ignore parts of the Constitution when it runs counter to what 'we the people' want.

I use the internment of U.S. citizens of Japanese origin during WWII as my example. One need not be a Constitutional scholar to recognize this as unconstitutional imprisonment without trial. But I suspect it was popular at the time.

We can only hope that every once in a while we step back and correct our mistakes.

What bugs me is when people twist themselves into an illogical pretzel to defend an unconstitutional position. They should be more honest and repeat the quote (sorry can't remember the author) "The Constitution is not a suicide pact." The guy who said that was at least an honest man.
7.8.2008 5:30pm
josh:
wfjag: "Depending on the laws of the state in which you live, you may be a member of the state's militia, even if you don't know it."

Sweet. When do I get my gat?

wazzagrunt: "Actually, it was 9-0 for an individual right, unconnected to militia service. The "4" just believe that individual rights can be regulated into meaninglessness."

That last part seems a bit hyperbolic. Even Scalia's opinion indicated a great deal of wiggle room for regulation, extending the right only to possession of a "normal" (my term) gun for defense purposes in the home. And I agree the dissent recognized and individual right, but the issue for them certainly was the scope of the right, which, to my understanding, they would have limited to service in the regulated milita.

In any event, I don't understand the anger from the "winners." I really don't care about the outcome, but the reading of the language by the dissenters (and Rakove) seems at least plausible, and not irrational.
7.8.2008 6:06pm
arbitraryaardvark (mail) (www):
A couple of questions for discussion, only somewhat related to Rakove topic. 1) Is there now a market for teaching the 2nd in law schools and CLEs? Is there a suggested texbook?
I know EV teaches the 2nd as part of one of his con law classes, but he's been the exception that proves the rule.
2) Is the right to keep and bear arms a Privilege and Immunity of federal citizenship under the 14th A, properly understood?
7.8.2008 6:07pm
CheckEnclosed (mail):
Wasn't Rakove, in part, basing his argument on original intent rather than public meaning? He argued that prior drafts of the Second Amendment had different language than the original, and that consideration of that language indicated that the drafters considered the right to be collective, rather than individual. But unless the people who ratified the Bill of Rights were aware of the difference between earlier drafts and the final one, how could that difference affect the meaning of the text as generally understood at the time?

Even if the changes were known, this type of "legislative history" seems ambiguous. Assume that draft one protected the "right of the people (both individually and collectively) to keep and bear arms" and the final draft omitted the parenthetical phrase: one could infer either that deletion of that phrase was made becasue the information it conveyed was deemed obvious, or redundant (supporting an individual rights interpretation), or that deletion of the phrase was done to eliminate the express provision of an individual right (supporting a collective right interpretation). How could we know which inference the majority of potential ratifiers would have drawn?
7.8.2008 6:16pm
FWB (mail):
1) If Congress can define the Militia, then Congress may define any and all words of the Constitution. If Congress held this power, then the ENTIRE Constitution is moot and need not be put to pen.

2) Congress is subordinate, at least in theory, to the Constitution, and fundamental law theory as expressed by Hamilton stated that the subordinate cannot define the superior (the Constitution).

If we accept that Congress could legally limit the Militia to all males 17 to 45, then we would have to accept Congress defining the Militia as persons under the age of 4 or over the age of 80 should Congress see fit.
Congress was "to provide for organizing...the Militia" which implies taking something that exists and arranging it. It does not state Congress may decide the membership of the Militia. The use of the term Militia in the Constitution indicates a pre-existing entity.

Why is there still an argument about the 2nd? Because those in power or those desirous of power recognize the "power" of Arms in the hands of the People is not conducive to their agenda. For an excellent discussion on that agenda, try _The_Road_to_Serfdom_ by F A Hayek.

For an excellent explanation of the 2nd, read Story(1833) Commentaries on the Constitution of the United States. It can be found online at www.constitution.org

Please also note: The second and other amendments "OF" the Constitution do not grant any Rights, these amendments merely enumerate certain Rights of all humans and place restrictions on the government's behavior relative to those Rights even though no where in the original Constitution was power granted for the government to infringe on those Rights. Those who pushed the BoR recognized the frailty of man and attempted to make sure that certain important human Rights were respected. Seems the Framers knew much more about human frailty and the desire for power than most know today.

From Rawle, 1829:


In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are
confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of
government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more, or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to Protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, "suitable to their conditions, and as allowed by law." [6] An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace the expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant
than avowed, by the makers of forest and game laws. [7]

This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single, individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause
to require him to give surety of the peace. If he refused he would be liable to imprisonments. [8]
7.8.2008 6:25pm
33yearprof:
A couple of questions for discussion, only somewhat related to Rakove topic.
1) Is there now a market for teaching the 2nd in law schools and CLEs? Is there a suggested texbook?
I know EV teaches the 2nd as part of one of his con law classes, but he's been the exception that proves the rule.
2) Is the right to keep and bear arms a Privilege and Immunity of federal citizenship under the 14th A, properly understood?


1) Yes. I've taught a Con Law Seminar on the Second Amendment since about 1992. There is a law school directed book by David Kopel, et al but I use Stephen Halbrook's book and my own materials.

Yes. See generally: the Aynes article at 103 Yale l. J. 57.
7.8.2008 6:25pm
EIDE_Interface (mail):
Why don't liberals just admit they hate guns, hate the 2nd amendment? Why try to twist the amendment to say something it doesn't? Talk about intellectual dishonesty as a means to an end. The end being, ban all guns.
7.8.2008 6:48pm
Charlie (Colorado) (mail):

McCain wants to put a bolt-action rifle in the hands of every able-bodied American male, so that we can be ready when the Kaiser comes for us.

Well, and you'd be surprised just how much trouble 300 million people with bolt action rifles could stir up.
7.8.2008 6:50pm
Kirk:
josh,

Are you really unaware of the longstanding practice, at least in the anglosphere, for legislative acts to begin with a long series of "Whereas's", which serve to explain the context, motivation, and intent of the law, but which don't actually say what the new law is going to forbid and/or require?

The Constitution itself starts with a preamble of similar function, though without using the term "Whereas".

Note, too, that the Declaration of Independence consists almost entirely of such prefatory material; it's not until the final paragraph that it gets around to the performative , "We, therefore, the Representatives of the united States of America... do... solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved..."

I would say the "militia language" is only important to people who are ignorant of this very common feature (or pretend to be.)

Sarcastro,

Make mine a Lee-Enfield, please, so I can get more shots in between reloading!
7.8.2008 7:53pm
wuzzagrunt (mail):
Can an argument be simultaneously tortuous and circular? Professor Rakove seemed to consciously avoid addressing the obvious point about the federal Constitution/Bill of Rights constraining only the federal government's actions WRT infringing individual rights. He's a smart feller and it's a simple enough concept to grasp, so I assume he understands it.

I was fairly shocked at Professor Volokh's youth. I subconsciously assume that people with the lofty title of Law Professor will always be older than me and look like Charles W. Kingsfield Jr., or maybe Judge Bork.

Also...it wouldn't kill you to get a little sun. Go play outside.
7.8.2008 8:25pm
Kirk:
wuzzagrunt,

Wait till all your airline pilots and doctors are younger than you!
7.8.2008 8:37pm
Bama 1L:
How do you know the 2d Amendment is meant to be enforced against Congress? The 1st Amendment obviously was, but some of the others aren't.
7.8.2008 8:39pm
Dilan Esper (mail) (www):
Kirk:

That's way too simplistic. Yes, purpose clauses don't always define the scope of the operative provision. But they sometimes do, and they are useful for interpretation.

The problem here is that you have two really unreasonable positions, the "left" position that says that an amendment that plainly created an individual right to own a firearm did no such thing, and the "right" position that says that even though the framers specifically linked the concept of the individual right to a well regulated militia, in fact, the prefatory clause can have no meaning at all. In each case, what is doing the work is the person's preexisting views on 21st century gun control, not 18th century practice.

The only interpretations that give meaning to both parts of the Second Amendment and interpretations that protect an individual right but which recognize the government's power to regulate/discipline/train/organize the militia that comprises the armed populace. And few people are attracted to that meaning because it doesn't get anyone all the results they want in the cases.
7.8.2008 8:39pm
glangston (mail):
So much for Jack's promise to buy his daughter a pony.
7.8.2008 8:45pm
wuzzagrunt (mail):
Dilan, there is some truth to what you say, but I don't think you have it nailed down on all 4 corners. The Militia Clause is not meaningless, but the people can retain the right to arms in the absence of a militia, organized or not. The opposite is not true, however, in that there could have been no militia without privately kept arms--at least as defined by the Militia Act of 1792.

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Professor Rakove makes the case that the 2A is merely an advisory opinion concerning the maintenance of a militia, but then dismisses the militia as irrelevant due to the fact that their record in the Revolution sucked pretty hard (not a direct quote). In the War of 1812, some militiamen gave a good account of themselves so I don't believe it is settled fact that a militia is of no value.
7.8.2008 9:44pm
Sam Draper (mail):
OK, how does this look:

Stevens: "A well regulated Militia, being necessary to the security of [the] State[s], the right of the people to keep and bear Arms [in Militia service] shall not be infringed."

Breyer: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed [except when doing so bears a rational relationship to a legitimate government purpose]."

Scalia: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and [sometimes] bear [some] Arms [for the purpose of self-defense] shall not be infringed."

NRA: "A well regulated [duck hunt] being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."
7.8.2008 10:11pm
Tony Tutins (mail):
EPU: Jack is indeed the misguided spawn of the author of "Don't Make No Waves; Don't Back No Losers," and "We Don't Want Nobody Nobody Sent."
7.8.2008 11:20pm
wuzzagrunt (mail):
Kirk:
wuzzagrunt,

Wait till all your airline pilots and doctors are younger than you!

I'm already there. I was sitting in the car with my wife when a couple of NYC's Finest walked by, and my wife said it at the precise moment I thought it: "Remember when you had to be old enough to vote, to become a cop?". They seem to make 'em younger every year.
7.8.2008 11:22pm
Consenting:
Professor Volokh,

I thought the 10 or so minutes of the one hour debate where you were allowed to speak uninterrupted was fascinating.

To paraphrase an old law saying, "When both the history and the law are against you, interrupt frequently."
7.8.2008 11:30pm
Tony Tutins (mail):

the [militia's] record in the Revolution sucked pretty hard (not a direct quote). In the War of 1812, some militiamen gave a good account of themselves so I don't believe it is settled fact that a militia is of no value.

Consider the number of volunteer companies that sprang up during the Civil War, including, from New Mexico alone,
Alarid's Independent Company Militia
Romero's Independent Company, Co A, Militia Infantry, New Mexico
Perea's Independent Company, New Mexico Volunteers USA
Gonzales Company, New Mexico Militia USA
Montoya's Company, Perea's Battalion, New Mexico Militia Infantry
El Valle's Co, Perea's Battalion, New Mexico USA Militia Infantry
Duran's Company, New Mexico Military Militia USA
7.8.2008 11:33pm
Kirk:
Sorry, Dilan, I'll take simplistic over disingenuous strawman arguments any day of the week!

Please show me one person on the "right" who claims the prefatory clause is "meaningless"! No one claims that; what we* claim is that it's explanatory.

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* That's "we" who hold to the Standard Model of the 2nd Amendment; I do not mean to affiliate myself with any particular point on the L-R political axis thereby.
7.9.2008 12:35am
wuzzagrunt (mail):
The Court may not "interpret the Constitution so as to render its language surplusage", but rendering its language preposterous strikes many as a perfectly reasonable thing to do.
7.9.2008 3:22am
James Lindgren (mail):
When Rakove was on a panel with me in Jan 2001, he was asked whether the DC gun ban was constitutional. He said in his opinion it wasn't. As I vaguely recall, I think he thought that the right had to have some independent content against the government, but I remember the conclusion, not necessarily the reasoning.
7.9.2008 3:37am
Snarky:
Basically, Volokh was pretty much destroyed in this debate with Rakove. Now we know why Volokh is stuck at UCLA, while Rakove is at Stanford.
7.9.2008 8:13am
Snarky:
BTW, I should add. As a proud NRA member, I am glad the decision came down as it did.

I cannot believe Volokh cannot even acknowledge that there are problems with some of the "scholarship" the gets into law reviews.

Of course, I think that Volokh is clearly a beneficiary of this system. I highly doubt his article on slipperly slopes would have survived the rigorous process of peer review. It is, however, much easier to get sympathetic libertarian students on the Harvard Law Review to cast some votes to get your work published, regardless of lack of merit.

Let's face it. Historians are, on average, better at history the law professors with their law office histories.
7.9.2008 8:17am
A. Zarkov (mail):
"Basically, Volokh was pretty much destroyed in this debate with Rakove. Now we know why Volokh is stuck at UCLA, while Rakove is at Stanford."

That's your opinion-- I got exactly the opposite impression. Rakove had to dodge and weave and never would diretly answer the pertinent question: what 2A prohibit the Congress from doing?

Are you asserting that every single law professor at Stanford is better than every law professor at UCLA? Personally I'd rather hire a UCLA graduate because the program at Stanford is much too theoretical. In any case, it's in really poor taste to fling personal insults at EV. If you think his argument was deficient in places then tell us that.
7.9.2008 8:38am
wuzzagrunt (mail):
Snarky:

Basically, Volokh was pretty much destroyed in this debate with Rakove. Now we know why Volokh is stuck at UCLA, while Rakove is at Stanford.

My favorite part was when professor Rakove--at about 8:57--expressed reservations about "interpreting the Constitution as...primarily a legal document...". That's comedy gold, right there.
7.9.2008 9:27am
wfjag:

Professor Rakove makes the case that the 2A is merely an advisory opinion concerning the maintenance of a militia, but then dismisses the militia as irrelevant due to the fact that their record in the Revolution sucked pretty hard (not a direct quote).


It depended on how the militia was employed. At Cowpens, "Mad Anthony" Wayne used the militia units to decisive effect. King's Mountain is another example of militia winning a decisive, strategic victory (admittedly, in that case against Loyalist militia). Rakove appears to draw his conclusion based on how militia units performed in New England and New York against British Regulars -- then considered the finest Soldiers in the world. Still, even at Breed's Hill (popularly known as Bunker Hill), the Colonial militia units performed very well -- losing because they did not have bayonets and so could not fight off the British Regulars when they closed.

josh: Check Ohio's laws. Maybe you can justify a ownership of a gat as a member of the "unorganized" militia. But, for something close-in, like home or self defense, I'd suggest a 12 gauge pump or a Glock Model 21 C (.45 cal., ACP, w/ 13 round clip -- the .45 is very accurate if you practice with it.). Both are also big and loud -- winning through intimidation is still winning. Adding a laser scope doesn't do much to increase accuracy -- since that's due to learning proper firing techniques -- but it's a real intimidating addition (think "Terminator").
7.9.2008 10:14am