Re: From the list custodian RE: discussion: is gun registration unconstitutional?

[Eugene Volokh]

Title: Re: From the list custodian RE: discussion: is gun registration unconstitutional?

    Three closing thoughts:

 

    1)  If the argument will only persuade skeptical readers once they've read a six-volume treatise, trust me:  It's not going to persuade many readers (certainly not judges, probably not even lawyers or law professors).  Maybe that's too bad, but there it is.

 

    2)  Nothing in what the post below says helps explain why a discussion of *how the militia was run* is dispositive of *how the Constitution mandates that the militia be run*.  I have no doubt that past practice can be *relevant* to understanding what the Constitution mandates.  But it alone can't be dispositive.  The Constitution often leaves latitude for Congress to choose approaches that are other than what the Framers used.  Sometimes it doesn't, but often it does.  It's not enough to say "This is how it was done in 1787, therefore it's the only way that it can be done" or even "therefore things have to be done pretty much the same way."  You've got to produce a persuasive argument for it.

 

    3)  In any event, if you believe that your statement is supported by some source, CITE IT in the original post, and explain why you think it should be seen as an authoritative exposition of how the Constitution demands. Do NOT just say "The Constitution means this" or "This is unconstitutional."  Explain why you think this is so.  I'm firmly convinced that this will advance the debate; but in any event, even if you disagree, please abide by my request on this.

 

    Eugene

 

It is not legal argument, but historical argument that involves historical
precedents that inform legal interpretation.

James B. Whisker is a professor of political science at West Virginia
University. See http://www.as.wvu.edu/New_Folder/faculty/polsci.html . Also
see http://www.honors.wvu.edu/SGR2000/Course29.htm and
http://www.honors.wvu.edu/200001/Course35.htm

Then accepted modes of regulation or registration as such were not the focus
of Whisker's historical analysis, so there are not pithy quotes that could
be cited by page to support my points on legal interpretation. Rather, there
is evidence consisting of many examples of militia rolls (registration of
men), inventories of weapons and other equipment, call-ups and commands to
militia, militia operations, and related documentation and events, scattered
throughout the treatises, which, taken together, show a pattern. One has to
read all six volumes to get a general picture of what was going on in that
era. Many of the details are in the works cited by Whisker, most of which
are not available outside either his personal collection or that of West
Virginia University. Even his treatises are not widely available, which is
one of the reasons we have them online.

Clayton Cramer has done research along these lines as well, and may want to
weigh in on this.

Militia history is fascinating, and those who are concerned about how to
interpret the Second Amendment should read such historical material on it.