-------- Original Message -------- Subject: Re: Re: Iraq and the Second Amendment Date: Mon, 16 Aug 2004 19:27:40 -0400 From: Glenn Reynolds <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]>, <[EMAIL PROTECTED]>
This is a very interesting point. I think, though, that the term "militia" is misused in its application to Iraq.
At least, the classical American militia was supposed to be ordinary citizens, self-organized and self-armed, operating under a structure created by the state. (There were exceptions during the Revolutionary War, with militias created by people like George Mason who were in rebellion, and part of only a nascent state, but revolutions are, by nature, exceptional).
The bands in Iraq, on the other hand, are private armies -- frequently including many foreigners -- in the service of private warlords, themselves often in the pay of foreigners. Though news media refer to them as militias, I doubt that the Framers would have thought of them that way. In fact, I think they would have regarded them as the sort of entities that the militia was supposed to suppress.
I agree, however, that the Kurds would be fools to disarm.
Sanford Levinson <[EMAIL PROTECTED]> 08/16/04 4:30 PM
"The presence of an armed militia means there is a state within a state and this won't work," is, apparently, part of a statement of principles issued by the meeting of Iraqi notables that met in Baghdad yesterday.
I am (genuinely) curious about the way we think of "the right to bear arms" in the Iraqi context. Let me put it this way: Are one's views about the meaning (or relevance) of the Second Amendment based entirely and exclusively on the "local" American context, or are one's views about the Second Amendment linked to some larger view about the (de)merits of arms
within the political order. For example, take the "corporatist" view of
the Second Amendment, which is that it safeguards only the right of a state to have a militia against congressional prohibition. But if one takes state militias seriously, doesn't this mean that "there is a state within a state." Did this work in the US? If so, then why shouldn't other countries learn from our experience. Incidentally, can any sane person believe that the Kurds will--or should--disarm and turn over their fate to the majority of non-Kurds who will, inevitably, dominate an elected Iraqi government. If one is offering advice as to constitutional design, would one really advocate giving the national Iraqi government a "monopoly over the means of violence." Or is the difference that the Kurds actually control several provinces, so that we could analogize their armed militias to our "state militias," whereas the people in Najaf are more "free lance? (But, of course, if one really buys into the "individual rights"
view of the Second Amendment, "free lanceness" shouldn't matter, or should it?
Is it irrelevant what happened here, because the American experience, like all national experiences, is sui generis? This would suggest, of course, that the notion of "comparative constitutional law"--and of the advisability of American law professors giving advice based on our/their
own expertise about the US constitution--is completely chimerical. I take it that the conceptual possibility of a truly comparative constitutional
law is within the jurisdiction of our list.
sandy
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