The simple conclusion is “a state infringing RKBA means its militia is not well-regulated” according to US Constitution, 2nd Amendment and that conclusion is unquestioningly binding on Federal Government. I claim it is binding on any of the states in the US, too. Here is the argument
We know at least that Congress cannot provide resources to a militia that will not be well-regulated (at least without violating the Constitution). For, otherwise, it would be able to conspire with the states to circumvent provisions in the Constitution binding on the Federal government. Suppose a state undertakes to train its militia but forbids arms to the people (infringing on the right to arms of such parts of people of the United States who live in the state). Can the militia provide for service to the Federal government by that state be “well-regulated?” Obviously, the militia does not meet the US Constitution criteria for a “well-regulated” militia. Conclusion, the Federal government if forbidden to accept for service or to provide resources to train any militia of a state that infringes the right of its people to keep and bear arms. But, that would mean the Federal government (Congress) couldn’t call forth the militia of that state or train it invalidating Congress’ powers to do so in Article I, SECTION 7 of the Constitution. So, in order for a state to provide a militia to Federal service which meets the Constitution’s binding requirement on the Federal government of being well-regulated, the state cannot infringe the right to keep and bear arms of its people. Seems clear enough to me and I suspect the USSC of 1886. Phil -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Volokh, Eugene Sent: Wednesday, July 25, 2007 7:46 PM To: List Firearms Reg Subject: RE: The REPUBLICAN ... from New York. Congress's *power* to provide for organizing, arming and discipling the militia would likely give it substantial authority to preempt state laws that disarm citizens. To take one example, if Congress were to conclude that every member of the militia, which is to say every adult citizen age 18 to 45, must have a handgun in his home, that would be a proper exercise of Congress's power, and would preempt state laws that bar private possession of handguns. It may well be that the early Militia Acts had such an effect, though I don't know of any state laws of the time with which they would have conflicted. Likewise, Congress's other powers could give it some authority to preempt other state laws. But it hardly follows from this that the *Second Amendment* itself preempted state laws. The Second Amendment barred federal disarming of individuals. But it didn't require the federal government to arm individuals, or to enact laws that preempted rival state laws. It may have expressed a view on what the federal government should do (regulate the militia well), but it didn't require the federal government to do so; it only barred the federal government from infringing the right of the people to keep and bear arms. Folks, the Barron view is orthodoxy for good reason. It reflects the better reading of the constitutional text, the drafting history of the Bill of Rights, and how the Bill of Rights was apparently understood in the 1790s. There are some contemporaneous dissents from it, and some modern ones. But it is on balance correct, as applied to the First Amendment (which expressly mentions Congress), as to the Second Amendment (notwithstanding Congressional powers to preempt rival laws), and as to the other Amendments. Eugene Phil Lee writes: 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. No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.476 / Virus Database: 269.10.19/918 - Release Date: 7/25/2007 2:55 PM
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