Thursday, March 4, 2010

More Second Amendment



If you're interested in the Second Amendment debate, you might watch this video. Fireworks start at about minute 16. I think Volokh wins decisively, but I'm interested in other thoughts.

UPDATE: it occurred to me watching this for the second time, that maybe the most important part of the discussion isn't what happened in 1787, when the Second Amendment was written, but what happened in 1868, when the 14th amendment was adopted.

Rakove's argument (that he doesn't quite commit to) seems to be that the states were being promised some sort of dual authority over the militia, and that no individual right was guaranteed. But then the debates over the Fourteenth Amendment show that the Republicans at the time (who controlled congress when the Fourteenth Amendment was adopted) were ensuring the right to keep and bear arms to blacks. And that right was not clearly not a state right; the Fourteenth Amendment cuts across state power. Of course, the privileges and immunities clause was almost immediately gutted by the Slaughterhouse cases, so maybe that doesn't get you very far...

UPDATE II: Just to complete that last thought: we know that whatever privileges and immunities were guaranteed by the Fourteenth Amendment were personal rights, because the Fourteenth Amendment was specifically passed to abrogate state power. So the question would be what do "privileges and immunities" mean; do they include the right to keep and bear arms?

Suppose the adopters of the 14th amendment thought that the second amendment included the right to keep and bear arms for personal defense? Wouldn't that make the 1786-87 debate largely irrelevant? Apparently there is some evidence that people in 1868 thought that privileges and immunities included the first eight amendments, but also that it included a right to keep and bear arms apart from the second amendment. But even supposing the commonly understood meaning of the 14th amendment was only that it made the second amendment binding on the states, wouldn't the relevant question still be "what right do the people in 1868 think they are making binding on the states, even if they are wrong about the original understanding of the second amendment? Apparently the debates from the time show that the amendment was in fact supposed to give blacks the right to keep and bear arms for self defense. I wonder then, if the 1868 understanding of the Second Amendment isn't more relevant than the 1786 understanding.

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