Was the Right to Bear Arms Conditioned on the
Militia?: A new and improved version of Randy Barnett's review essay, "Was the
Right to Keep and Bear Arms Conditioned on Service in an Organized
Militia?" has been accepted by the Texas Law Review.
Although it won't appear in print until December (at the earliest), you can read
a pre-edited version now by downloading the file from the SSRN. Here is the
abstract:
Those who deny that the original meaning of the Second Amendment
protected an individual right to keep and bear arms on a par with the rights
of freedom of speech, press and assembly no longer claim that the amendment
refers only to a collective right of states to maintain their militias.
Instead, they now claim that the right, although belonging to individuals, was
conditioned on service in an organized militia. With the demise of organized
militias, they contend, the right lost any relevance to constitutional
adjudication. In this essay, I evaluate the case made for this historical
claim by Richard Uviller and William Merkel in their book, The Militia and
the Right to Arms, or, How the Second Amendment Fell Silent. I also
evaluate their denial that the original meaning of Fourteenth Amendment
protected an individual right to arms unconditioned on militia service. I find
both claims inconsistent with the available evidence of original meaning and
also, perhaps surprisingly, with existing federal law.
*********************************************************************** Professor
Joseph Olson Hamline University School of
Law tel. (651)
523-2142 St. Paul,
Minnesota 55104-1284 fax. (651)
523-2236 < [EMAIL PROTECTED]>
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