[lbo-talk] 2d Amendment/Rule of Law (Was: The curse of literacy)

Doug Henwood dhenwood at panix.com
Sun Jul 18 09:17:51 PDT 2004


andie nachgeborenen wrote:


>As it presently interpreted by every federal Appeals
>Court that has weighed in, under the authority of US
>v. Miller (S.Ct 1937), the 2d Amendment does not give
>private individuals a right to bear arms, but only in
>the context of a "well-regulated militia." The courts
>regularly dismiss law suits brought by right wing gun
>nuts arguing the contrary.

Dan Lazare had a piece in Harper's some years ago arguing that based on the legislative history, the pro-gun forces were right about the 2A. It's reprinted here: <http://www.findarticles.com/p/articles/mi_m1111/is_1793_299/ai_55881915>. Dan used this to argue against the Constitution, which he thinks is ludicrously obsolete. As you might imagine, Harper's readers were outraged.

An excerpt:


>For decades liberal constitutional scholars have maintained that,
>contrary to the NRA, the Second Amendment does not guarantee an
>individual's right to own guns, merely a right to participate in an
>official state militia. The key phrase, they have argued, is "[al
>well regulated Militia," which the introductory clause describes as
>nothing less than essential to "the security of a free State." A
>well-regulated militia is not just a goal, consequently, but the
>goal, the amendment's raison d'etre. Everything else is subordinate.
>The right "to keep and bear Arms" is valid only to the degree that
>it serves this all-important end. There is therefore no individual
>right to bear arms in and of itself, only a collective right on the
>part of the citizens of the states to do so as members of the
>various official state militias. The right to own the assault weapon
>of one's choice exists only in the fevered imagination of the
>National Rifle Association. Its constitutional basis is nil. The
>only right that the Second Amendment confers is the right to emulate
>Dan Quayle and join the National Guard.
>
>This is the cheerful, anodyne version of the Second Amendment we're
>used to from the American Civil Liberties Union and other liberal
>groups. But as the gun issue has heated up since the Sixties and
>Seventies, constitutional scholars have taken a second look. The
>result has been both a renaissance in Second Amendment studies and a
>remarkable about-face in how it is interpreted. The purely
>"collectivist" interpretation has been rejected across the board by
>liberals and conservatives as ahistorical and overly pat. The
>individualist interpretation, the one that holds that Americans have
>a right to bear arms whether they're serving in an official state
>militia or not, has been more or less vindicated. In fact, some
>academics have gone so far as to compare the NRA's long campaign in
>behalf of an expansive interpretation of the Second Amendment to the
>ACLU's long campaign in behalf of an expansive reading of the First.
>As the well-known constitutional scholar William Van Alstyne put it,
>"The constructive role of the NRA today, like the role of the ACLU
>in the 1920s, ... ought itself not lightly to be dismissed. Indeed,
>it is largely by the `unreasonable' persistence of just such
>organizations in this country that the Bill of Rights has endured."
>Language like this is what one might expect at some Texas or
>Colorado gun show, not in the pages of the Duke Law Journal.



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