[EMAIL PROTECTED] wrote:
> DC did find (or to be precise, appropriated him from Saul Cornell) a sorta
> popular legal commentary in the 1820s, I believe, that argued (sans
> historical references) for a collective manner of right.
>
Which amounts to nothing and supports my point. All the commentary does
is, obliquely, discuss rights that may only meaningfully be exercised on
collective occasions, but that doesn't make the right "collective".
> Remember also that the traditional collective right (it's a state's right) is
> somewhat different from DC's sophisticated collective rights approach (it's
> an individual right, but only operative if a state creates a well-organized
> militia). This (1) sidesteps the "right of the people" textual problem and
> (2) enables at least some individual right sources to be read as ambiguous
> ("OK, he said it's an individual right, but that's not inconsistent with this
> thesis.")
>
The term "states' rights" is a somewhat misleading abbreviation of
"powers reserved to the states or to the people" from the Tenth
Amendment, but even so it refers to the individual right not to have the
central government exercise undelegated powers against either a state
government or its citizens. We sometimes forget that the original idea
was that individuals could privately prosecute a public right in court
without having to have been personally injured first, a right that was
not formally abridged until /Frothingham v. Mellon/, 262 U.S. 447
(1923). See "The Metaphor of Standing and the Problem of
Self-Governance", by Steven L. Winter, 40 Stan. L. Rev. 1371, July,
1988. http://www.constitution.org/duepr/standing/winter_standing.htm
The key point, as I have often stated, is that militia is primarily
defense activity and only secondarily those engaged in it, as was common
usage of many words in that era, and that there is no minimum number of
those who may engage in it. An individual is always and at all times at
least a militia of one. But 18th century English is a foreign language
with respect to 20th century English. (I am working on making 21st
century English more like 18th for key terms of art.)
> On the other hand, this approach was only invented in the late 1990s. This
> does not prevent its proponents such as Justice Stevens from citing the
> Circuit's pure collective rights rulings as supporting it.
>
They can cite anything they want but if they claim their positions are
"originalist" they had better be able to find something from before 1789.
>
> -----Original Message-----
>
>> From: Jon Roland <[EMAIL PROTECTED]>
>> Sent: Jul 8, 2008 7:32 PM
>> To: "Volokh, Eugene" <[EMAIL PROTECTED]>
>> Cc: [email protected]
>> Subject: Re: Eugene Volokh: Another Early 1800s Source Supporting the
>> Individual Rights View of the Second Amendment:
>>
>> Rather than searching for evidence of courts taking an individual rights
>> view, it might make more sense to seek evidence from near the Founding
>> of anyone taking the "collective rights" view. I confidently predict you
>> will find none, because it was first introduced in the late 20th century
>> to rationalize gun control, and would have been thought bizarre by the
>> Founders, for whom all rights were inherently individual. For them,
>> rights, which would be called "immunities" by the framers of the 14th
>> Amendment, were restrictions on the power of officials to act against
>> individuals. ("Privileges" were created by government, by contrast to
>> "immunities", which preceded government.) Even something like voting (a
>> privilege), which can only meaningfully be exercised on a collective
>> occasion, is still individual, not collective.
>>
>> It is not likely to be productive, after an issue has been misframed by
>> partisans, to seek historical evidence of it being otherwise framed in
>> the past, because anyone can always invent some new way to misframe an
>> issue that previous generations would never have thought of and would
>> produce no evidence on the matter one way or another.
>>
>> This is perhaps negatively illustrated by the absence of attempts to
>> exhaustively list ("enumerate") all rights ("privileges and
>> immunities"), an effort which Justice Bushrod Washington found to be
>> "more tedious than difficult" in /Corfield v. Coryell/ (6 Fed. Cas. 546,
>> no. 3,230 C.C.E.D.Pa. 1823)
>> <http://en.wikipedia.org/wiki/Case_citation>, before making an effort to
>> broadly list a few of them. Even the state ratifying conventions in
>> their proposed amendments did not attempt to list them exhaustively. I
>> have tried to do that in *Presumption of Nonauthority and Unenumerated
>> Rights, *http://www.constitution.org/9ll/schol/pnur.htm . It can be done
>> by proceeding from a higher level of abstraction and then working down
>> to more specific levels, but people in the Founding Era were more
>> accustomed to thinking in terms of more specific rights arising from
>> particular disputes, without getting around to abstracting them
>> systematically. We have made some philosophic progress in 232 years.
>>
>> As an aside, the cases Eugene found illustrate something else: the
>> original standard of due process according to which issues of law were
>> supposed to be argued in the presence of the jury. See */Stettinius v.
>> United States/*, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573,
>> http://www.constitution.org/usfc/fc/22/Stettinius_v_US.htm .
>>
>> -- Jon
>>
--
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