Brown involved a prohibition on *state* actions, which the Court
the same day held applied to federal actions as well (Bolling v.
Sharpe). So there's no analogy to a situation where the federal
government is barred from doing something, but state governments are not
so barred.
The better analogy would be to federal-but-not-state
prohibitions that persist even now. The federal government must
generally provide for jury trials in civil cases (with some exceptions).
The Court has held that this provision does not, however, apply to the
states. Likewise, the Court have held that states aren't bound by the
Grand Jury Clause, or by the unanimity requirements of the Criminal Jury
Trial Clause. Does it follow that Congress is barred from providing
resources to state justice systems that allow some civil trials to
proceed without juries, that provide for prosecution by information
rather than by indictment, or that provide for nonunanimous criminal
juries? I know of no authority that even hints at such a result.
Eugene
> -----Original Message-----
> From: Philip F. Lee [mailto:[EMAIL PROTECTED]
> Sent: Sunday, July 29, 2007 9:29 AM
> To: Volokh, Eugene; [email protected]
> Subject: Re: FW: The REPUBLICAN ... from New York.
>
> In Brown vs. Board of Education, the USSC rendered the
> decision that "Does segregation of children in public schools
> solely on the basis of race, even though the physical
> facilities and other "tangible" factors may be equal, deprive
> the children of the minority group of equal educational
> opportunities? We believe that it does . . . We conclude that
> in the field of public education the doctrine of 'separate
> but equal' has no place. Separate educational facilities are
> inherently unequal."
>
> Imagine for the moment that the Congress said, "oh well, it
> may be true that separate means unequal, but we're going to
> send money to the states that maintain segregation anyway."
> Your view that Congress can fund a state's militia that isn't
> well regulated and, thereby, is contrary to the Bill of
> Rights binding on Congress would have the same effect as
> Congress deciding to fund schools that were unequal.
>
> While I'm aware that Congress did continue to fund state
> segregated schools, it did so with the understanding that the
> schools would change over time. For the Congress to decide
> that it would fund school even if they didn't change, would
> have been for Congress to decide it could violate the rights
> of the people contrary to the law as decided by the USSC.
>
> Of course, the big difference in the education case vice RKBA
> is that the USSC had to overturn settled law in Brown to
> reach its 1954 conclusion. No amendment to the Constitution
> had been adopted to motivate the Warren Court's decision
> reading "An educated citizenry being essential to a free
> state, the right of the people to have equal education
> opportunities shall not be infringed."
>
> Phil
>
>
> > 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.
> >
> > _______________________________________________
> > To post, send message to [email protected] To
> subscribe,
> > unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
> >
> > Please note that messages sent to this large list cannot be
> viewed as
> private. Anyone can subscribe to the list and read messages
> that are posted; people can read the Web archives; and list
> members can (rightly or wrongly) forward the messages to others.
> >
> >
>
> --
> The Art of war is simple enough. Find out where your enemy
> is. Get at him as soon as you can. Strike at him as hard as
> you can and as often as you can, and keep moving on.
> -- Ulysses S. Grant
>
_______________________________________________
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