If a state forbids arms to the people, it may well violate
its own state constitution (if the state constitution secures an
individual right to bear arms). And Congress may preempt such
regulations, if it wishes. But it doesn't follow that "Congress cannot
provide resources to a militia that will not be well-regulated." The
Congress is precluded from one thing by the Second Amendment: infringing
the right of the people to keep and bear arms.
Eugene
________________________________
From: Phil Lee [mailto:[EMAIL PROTECTED]
Sent: Wednesday, July 25, 2007 6:54 PM
To: Volokh, Eugene; List Firearms Reg
Subject: RE: The REPUBLICAN ... from New York.
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.
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