Sunday, July 16, 2006

Not with a whimper but a bang

Thanks in no small part to generous promotion efforts by The Conglomererate, Feminist Law Professors,,, Joint Strike Weasel, and The Debate Link, Jurisdynamics is well on the way to welcoming its thousandth visitor during its first weekend online. For this jumpstart in blogging, I owe a great debt in gratitude to old friends (Christine Hurt, Ann Bartow, Joe Gratz) and to people I've never met (Ivan Ludmer, David Schraub).

By far the most popular source of referrals, though, is the Volokh Conspiracy, by way of old friend Jonathan Adler. I would hate to disappoint the large stream of visitors being steered my way by the Conspiracy. With your indulgence, then, I'll post an item aimed directly at Volokh stalwarts, who surely won't mind discussing one of Eugene Volokh's favorite topics. As a bonus, this post gives me the opportunity to promote another old friend, Saul Cornell, a constitutional historian who is about to explode onto the collective consciousness of legal academia.

For years Saul has worked meticulously as the director of Ohio State's Second Amendment Research Center, creating what is perhaps the deepest, most accessible online repository of serious scholarship about a difficult, contentious constitutional issue. The payoff for Saul's work comes in the form of his new Oxford University Press book, A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control. At this very minute, Saul is engaged in an online exchange with Mark Tushnet about the Second Amendment, constitutional history, and contemporary gun control. The most up-to-date turns in that debate appear to be available here. It's a lively, entertaining exchange, and I commend it to my readers' attention.

My own take on the Second Amendment is one of detached bemusement. When the Fifth Circuit declared in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (incidentally, the first prominent pronouncement on civil liberties by the federal judiciary after September 11, 2001) that that the Second Amendment protects the rights of individuals to privately possess and bear their own firearms, I was struck by the extent to which the Second Amendment debate ignores the affirmative powers of Congress in article I, section 8, clauses 15 and 16 of the Constitution. Sure, the Second Amendment declares: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." But the same Constitution empowers Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" and "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

At an absolute minimum, I argued (pseudonymously) in The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003), recognizing an individual right to bear arms under the Second Amendment portends the recognition of a stunningly fecund font of federal police power. The militia clauses of Article I allow Congress to reach deeply into whatever portion of the American public is thought to represent, at least incipiently or even latently, the mystical "Militia" of the Second Amendment and of the Constitution as a whole. Phages says a great deal more, and my thoughts on the issue haven't finished developing, but in all events the article can be downloaded via my SSRN page.


Blogger Laci the Chinese Crested said...

The problem with most Second Amendment jurisprudence is that it starts with a suppostition and works to support that supposition. The supposition is the "right of individuals to keep and bear arms", which has gone far from its meaning of arms for military purposes in "New Recent Scholarship". The debate does not accurately examine the relationship between "the evils of a standing army", the establishment of a Federal Army, and the institution of the state's militia. The debate has actually gotten away from the meaning and intent of the Second Amendment which was the preservation of a citizen's militia (read the Swiss system of military). The Swiss system does not exist and has been replaced with what the founding father's feared: a standing military.

8/01/2006 1:01 PM  

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