RANDY E. BARNETT: RKBA, Conditioned on Service in an Organized Militia?

[Harry Tuttle]

Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?

RANDY E. BARNETT
Boston University School of Law

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=420981


Boston Univ. School of Law Working Paper No. 03-12

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.


Accepted Paper Series

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http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID420981_code142869.pdf?abstractid=420981

 

[Joe Demko]

Fascinating reading.

 

[FPrice]

I just downloaded it, hope to read it soon.

 

[Langenator]

Oi...another thing to read to the towering pile that is my "To Read" list.

Not sure if he mentions it in there, but something just occurred to me yesterday about the Miller case. The case upheld Miller's conviction, but nowhere did they cite that they were upholding it because Miller wasn't a member of any sort of organized militia (not many criminals are), but because they determined, in the absense of any evidence presented by the defense, that his weapon of choice was not a suitable militia weapon.

Given that the Army is testing a short-barreled under rifle shotgun, maybe that interpretation is ripe to be revisited.

 

[El Tejon]

Had Professor Barnett for Admin Law at Chicago-Kent. THAT'S what's wrong with me!

Merkel's argument is just silly. As with the First Amendment, statement of purpose does not define a right, a blackletter principle of civil rights. As with the First Amendment's right to petition, precatory desire does confine the group who may exercise the right or the rights to be excercised.

Of course, some animals are more equal than others here on Judiciary Farm.

 

[Standing Wolf]

My civil rights aren't contingent upon anything. Neither are yours. Enjoy.

 

[fslflint]

my english professor tried that organized militia stuff on me. I turned it around and asked where we would be if we had been listenning to the british and what would have happenned if we had not finnished the fight for our independence. I just made her think about where we would be without guns. that right is so that it never happens again. and if the governement gets to be like the british then we have what we need to start again.