Posted by Randy Barnett:
Does the Militia Preface Quilify the Right to Keep and Bear Arms?
http://volokh.com/archives/archive_2007_12_23-2007_12_29.shtml#1198856765
In light of the question presented in [1]The District of Columbia v.
Heller now pending in the Supreme Court, I have updated the SSSN
version of my article, [2]Was the Right to Keep and Bear Arms
Conditioned on Service in an Organized Militia?, so you can now
download the final version article as it appeared in the Texas Law
Review. Download it [3]here. Here is the abstract:
Those who deny that the original meaning of the Second Amendment
protected an individual right to keep and bear arms on a par with
the rights of freedom of speech, press and assembly no longer claim
that the amendment refers only to a collective right of states to
maintain their militias. Instead, they now claim that the right,
although belonging to individuals, was conditioned on service in an
organized militia. With the demise of organized militias, they
contend, the right lost any relevance to constitutional
adjudication. In this essay, I evaluate the case made for this
historical claim by Richard Uviller and William Merkel in their
book, The Militia and the Right to Arms, or, How the Second
Amendment Fell Silent. I also evaluate their denial that the
original meaning of Fourteenth Amendment protected an individual
right to arms unconditioned on militia service. I find both claims
inconsistent with the available evidence of original meaning and
also, perhaps surprisingly, with existing federal law.
References
1. http://en.wikipedia.org/wiki/Parker_v._District_of_Columbia
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=420981
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=420981
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
