The US Constitution in Article I, SECTION 7 gives Congress the power "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"
Seems to me that this provision says Congress has power about how the
militia is to be armed and trained.
The US Constitution, Second Amendment states: "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."
Seems to me that this amendment to the Federal Constitution states that the
right of the people to keep and have arms not being infringed is essential
to a "well-regulated" (well trained and disciplined) militia.
So, powers of a state or the Federal governments to infringe the right of
the people to keep and bear arms is limited by these two provisions. That
is, these provisions apply to the states, since, otherwise, the state would
provide a defective (not well-regulated) militia.
Since early Federal legislation required the people to appear with their own
militia weapon when called, it seems pretty clear to me that is how Congress
saw the provisions too.
However, that was in the days before some lawyers arrogated to themselves
the power to redefine the meaning of words like "up" and "down". Of course,
in dicta, the USSC said it so much more eloquently in Presser v. Illinois,
116 U.S. 252, 265 (1886):
" the states cannot prohibit the people
from keeping and bearing arms so as to deprive the
United States of their rightful resource for maintain-
ing the public security, and disable the people from
performing their duty to the general government."
showing they understood it too (at least they did in 1886).
Phil
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Volokh, Eugene
Sent: Wednesday, July 25, 2007 5:08 PM
To: List Firearms Reg
Subject: RE: The REPUBLICAN ... from New York.
I think that to the extent they were relying on Second Amendment as law
binding state governments -- rather than as, say, evidence of broader
natural law principles that bound state governments because state government
power should be interpreted in light of natural law -- they were mistaken.
(By the way, my sense is that the state cases were a handful; a nontrivial
number, but not a "large" one in any absolute sense.)
Eugene
_____
From: Joseph E. Olson [mailto:[EMAIL PROTECTED]
Sent: Wednesday, July 25, 2007 2:06 PM
To: Volokh, Eugene; List Firearms Reg
Subject: RE: The REPUBLICAN ... from New York.
OK, Barron is correct.
If so, what do we make of the large number of 19th century state cases
applying the Second Amendment against state actions and the early
commentators who, IIRC, took the view that the Second restricted both levels
of government?
>>> "Volokh, Eugene" <[EMAIL PROTECTED]> 07/25/07 3:40 PM >>>
By the way, here's one reason that Barron strikes me as an entirely
correct given the original understanding: *** Madison originally proposed
the Bill of Rights as amendments to the body of the Constitution.
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