This article is more flagellation of a dead horse! Get over it!
Ray Kessler Prof. of Criminal Justice Sul Ross State Univ. From: [email protected] [mailto:[email protected]] On Behalf Of Joseph E. Olson Sent: Thursday, March 18, 2010 10:26 PM To: [email protected] Cc: [email protected] Subject: New anti-RKBA article <http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1550771&partid=47512&did=65980&eid=88469555> "The Right of Self-Preservation and Resistance: A True Legal and Historical Understanding of the Anglo-American Right to Arms" Cardozo Law Review De Novo, Forthcoming PATRICK J. CHARLES <http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1428375&partid=47512&did=65980&eid=88469555> , Immigration Reform Law Insitute Email: [email protected] In the District of Columbia v. Heller both the Supreme Court majority and Justice Stevens’ dissent used history to determine the Second Amendment’s meaning and protective scope. In the end, the Individual Right Scholars’ interpretation of this history prevailed in a slim 5-4 decision, in which the Court held that armed individual self-defense was the “central component” of the Second Amendment and the District of Columbia’s “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” to be unconstitutional. Despite this victory for Individual Right Scholars and supporters, the Heller decision did not bind the States. Justice Scalia’s majority opinion goes to great lengths to assert that the District Courts should incorporate the Second Amendment through the Fourteenth Amendment’s Due Process Clause. However, except for the Ninth Circuit’s vacated judgment in Nordyke v. King, none of the other Circuit Courts have decided to incorporate the Second Amendment. Instead, these courts reiterated footnote twenty-three of the Heller opinion, which upheld the Supreme Court’s late nineteenth century decisions “that the Second Amendment applies only to the Federal Government.” This brings us to the issues that will be before the Supreme Court in McDonald v. City of Chicago. The issues presented are twofold. The first is whether the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause. In order for the petitioners to be successful in their claim they will have to show armed individual self-defense in the home is “fundamental to the American scheme of justice.” In conducting this constitutional standard the Court has traditionally examined the Anglo-American tradition of the right being asserted, tracing its history to Greek and Roman times, to the Magna Charta, through the English Declaration of Rights, and to the colonies. In addition to this history, the Court also examines the frequency by which the asserted right appears in the Founding Era’s State constitutions. The second issue before the Court is whether the Second Amendment is one of the “privileges and immunities of the citizens of the United States.” This issue is primarily significant because the petitioners are arguing that the ruling in the Slaughter-House Cases should be overruled and the Bill of Rights should be incorporated through the Fourteenth Amendment’s Privileges or Immunities Clause. Due to nearly one hundred forty years of settled Supreme Court precedent, this argument would seem doomed to fail. However, the fact that a multitude of historical and legal scholarship has called for the Slaughter-House Cases to be overturned may influence the Court to consider doing so, thereby incorporating the entire Bill of Rights. In fact, Justice Clarence Thomas has gone on record stating he “would be open to reevaluating its meaning in an appropriate case.” Certainly, in order for the Slaughter-House Cases to be overturned the Supreme Court will have to delve into the history of the Fourteenth Amendment’s ratifying debates, the journal of the Joint-Committee on Reconstruction, and the debates of the early Civil Rights Acts. This is history that the Supreme Court has addressed in numerous cases, and one would argue is settled as a matter of law. However, the Supreme Court does not need to adhere to its past historical precedents. It is well-established that the Court, at any time, may reexamine the historical basis of its past constitutional decisions. This precedent is particularly significant because not only are the petitioners requesting the Court reexamine the history and precedent of the Fourteenth Amendment’s Privileges or Immunities Clause, but petitioners argue that the Court should ignore recent scholarship proving the Heller decision to be historically controversial. To be more precise, the petitioners want the Court to exercise its historical discretion in support of their arguments and ignore any recent scholarship or history that disproves it. One cannot have it both ways. This article argues this exact point, and addresses Heller’s misinterpretation of the 1689 Declaration of Rights “have arms” provision. While I agree with the petitioners that the Supreme Court should reexamine its constitutional history, I disagree with the petitioners that only the history of the Fourteenth Amendment should be addressed. If the Court sees fit to reexamine the long established precedent of the Slaughterhouse Cases, then it should equally hear all historical arguments, for recent scholarship on the Second Amendment has shown the Heller majority selectively included and misinterpreted the history of the “right to keep and bear arms.” One may argue because the Heller decision was recently decided that another look into this history would be a waste of judicial resources. Interestingly enough, neither the Ninth Circuit nor the Seventh Circuit thought so. The Ninth Circuit opened the door for refutation of the Heller majority’s historical findings. The court stated, “[Santa Clara] County does little to refute [the] powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamental at the Founding and thereafter.” Similarly, the Seventh Circuit reexamined the history of Blackstone’s Commentaries, holding against the Heller majority’s interpretation, stating “Blackstone discussed arms-bearing as a political rather than a constitutional right.” In addition to this article briefly addressing whether the Supreme Court should reexamine the Second Amendment’s history this article provides an examination of the Anglo-American allowance to “have arms,” which shows armed individual self-defense is not “fundamental to the American scheme of justice.” While there is no denying it is every individual’s natural right to defend their person should they be assailed, Individual Right Scholars inaccurately claim individuals have a right to own modern weaponry to accomplish it. To prove my claim this article will address (1) what Blackstone truly meant by the “natural right of resistance and self-preservation,” and (2) how this “self-preservation” principle relates to the Anglo-American protection the allowance to “have arms” affords. In the end, the historical and legal evidence will show that the Heller decision was based on faulty assumptions that do not comport with the true meaning and understanding of an ancient Anglo American right to “keep and bear arms. Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected]
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