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.
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