Chemerinsky has a more fundamental problem: the inability to do honest
and competent historical scholarship. There are no "strong historical
arguments" for a "collective rights" interpretation of this or any other
provision of the Constitution, or for an outright ban on possession as
"reasonable regulation". All rights are individual. There is no such
thing as "collective rights", only the individual rights of collections
of people.
As for "reasonable regulation", he is correct that there can be
reasonable regulation, but constitutionally only in one direction:
toward making militia more effective and efficient. There can be, as in
the Militia Act of 1792, a requirement to have weapons, but not a
requirement not to have them. Militia commanders can regulate the men
under their command: they can, for example, regulate that a militiaman
carry a shotgun and not a rifle for sentry duty, and a rifle and not a
shotgun for sniper duty. He can require his men to declare the weapons
they bring to a formation, so he will have a way to assess their combat
capabilities, but not to declare everything they may leave at home,
other than to require that they bring any weapons of a certain kind if
they have any.
Regulation of firearms and militia is just like regulation of the time,
place, and manner of elections: Only in the direction of efficiency and
fairness. Congress may require congressional elections to keep the polls
open from 7:00 AM to 10:00 PM, but not to only open them for one
microsecond. It may require there to be a polling place for each
precinct of 3000 people, but not that there be only one polling place
for the entire state. It may require that balloting be secret and
accurately counted, but not that votes be subject to the scrutiny of
officials of only one party and counted only by members of a single
party. The power to regulate, like any other power, is not "plenary as
to those objects" (as Justice Marshall opined in /Gibbons v. Ogden/, 22
U.S. 1 (1824)). All delegations of power, but not rights, are supposed
to be "reasonable" only, which means only for certain legitimate public
purposes, and the question of whether they are reasonable in this way is
justiciable as to whether it is constitutional.
For example of unreasonable we see the amicus brief of Ted Cruz for the
State of Texas argue for the individual right to keep and bear arms, but
hold that a reasonable regulation is a prohibition of possession to
those convicted of a crime punishable by incarceration for a year or
more. As I have shown in a law review article, *Public Safety or Bills
of Attainder?*, /University of West Los Angeles Law Review/, Vol. 34,
2002, http://www.constitution.org/col/psrboa.htm , it is a violation of
due process and the prohibition on bills of attainder to do so. A
statute may prescribe that the penalties imposed in a sentence include a
disablement of the right to keep and bear arms, but not to legislatively
disable a right not disabled in the sentence, to some class of persons,
even those convicted of a crime.
The Founders took a lot for granted in the way they wrote, so that they
did not anticipate all the ways future generations might try to twist
their words. But a competent historian is supposed to be able to get
into the heads of people of a different place and time, to understand
things as they understood them, not as a modern person, from a different
background, might want to understand them.
-- Jon
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