Historians on the Second Amendment

Among lots and lots and lots of amici briefs in DC v Heller are “pro-individual-rights” and “pro-militia-interpretation” briefs from opposing sets of historians. Haven’t read them yet, but they look interesting. From what little I’ve skimmed, my sympathies are with the militia one, not surprisingly.  A couple of quotes:

As a problem for constitutional historians, the question can be elaborated and restated in this way: Did the framers and ratifiers of the Amendment believe they were constitutionally entrenching an individual right to keep arms for personal protection? Or did they conceive the Amendment to achieve a different end, by affirming that a “well-regulated militia” of citizen-soldiers would preserve “the security of a free state,” principally by lessening the need for a republican government to depend on a standing army?

What is at dispute is whether legal rights of private ownership were what the Second Amendment constitutionally entrenched. During this period, Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury, or freedom of conscience, or the natural rights to life, liberty, and property. The fact that references to the keeping of firearms are so few and terse, or that the modern academic controversy over the Second Amendment has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips, is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order. That was the subject that was patently in dispute in 1787-1789, and that is why the exceptional preamble to the Second Amendment is a true guide to its original meaning.

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2 Responses to “Historians on the Second Amendment”

  1. Historians on the Second Amendment, cont. « Michael Lauer’s Weblog Says:

    […] I’ve read, or rather skimmed slightly more thoroughly than previously, the two aforementioned historians’ briefs in DC v Heller. And I revise more former pro-DC-side judgment: my […]

  2. Mike Hansberry Says:

    Why present a false dichotomy?

    Why not consider that since both a “militia” and “a right of the people” were mentioned, both were intended.

    The first to publically comment on what became the second amendment was Tench Coxe. He read it as confirming the people in “their right to keep and bear their private arms”. That statement was in relation to defense againt possible tyrrany in government, but just as clearly he referenced “private” arms.

    Note that a provision of the VA militia act cited in US v. Miller allows the militia west of the Blue Ridge to use rifles to meet their duty to “keep” arms (muskets were the standard). Those living west of the Blue Ridge at that time were likely to own rifles for hunting and clearly the Virgina legislature expected that those people would possess and use firearms for non-militia puposes as well as for militia purposes. This example lends support to the Supreme Court’s conclusion that the militia when called to service would “arrive bearing arms supplied by themselves and of the kind in common use at the time”.

    The pro-individual rights historians list other examples of references to private uses and private rights to keep and bear arms. What is not on the table is anyone from that era writing that the right to keep and bear arms could be exercised ONLY by those persons actually in service in the well regulated militia.

    The pro-individual rights historians point out that even the duty to keep arms was broader that the supposed narrow right that the “militia only” side insists is the original meaning. The duty to keep arms was not restricted to those who were in the train band, but was reguired of all those who were enrolled (see US v. Miller, see also Fed #29 and discussion of “well-regulated militia” and “the people at large”). The pro-individual rights historians also show examples where heads of households were required to keep arms even though they were not enrolled.

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