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wig · 09-11-2003

JR, obviously you did not check out the link that I posted. So in all fairness to your interpretation, here is the other side of the story from Eugene Volokh.

He teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.

Volokh also worked for 12 years as a computer programmer, and is still partner in a small software company which sells HP 3000 software that he wrote. He graduated from UCLA with a B.S. in math-computer science at age 15, and has written many articles on computer software. He is a member of the The American Law Institute.

The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. 1 These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right.

What about the seemingly odd two-clause construction, which some commentators have called "unusual," "special," and "nearly unique"? 2 It turns out that there's nothing odd about it at all. During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution's Free Press Clause, for instance, reads

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject, being responsible for the abuse of that liberty . . . . 3
Just as with the Second Amendment, the second clause secures a right, while the first justifies it to the public.

And the two clauses of the Amendment are entirely consistent. The second clause guarantees a "right of the people," which is the right of each individual. The first clause explains that this right helps further a "well-regulated militia," a legal term of art that means "the body of the people capable of bearing arms" (here I quote from the New York Ratifying Convention's proposal that eventually became the Second Amendment 4) -- the entire armed citizenry, not some small National Guard-type unit. The current Militia Act, enacted in 1956 and derived from the original 1792 Militia Act, defines the "militia" as including all able-bodied male citizens from 17 to 45; 5 given the Court's sex equality jurisprudence, I feel comfortable saying that every able-bodied citizen from age 17 to 45, male or female, is a member of the militia. This is quite consistent with the second clause's securing an individual right to every person.

09-11-2003	#24
wig Members Join Date: Oct 2002 Posts: 1,248	JR, obviously you did not check out the link that I posted. So in all fairness to your interpretation, here is the other side of the story from Eugene Volokh. He teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh also worked for 12 years as a computer programmer, and is still partner in a small software company which sells HP 3000 software that he wrote. He graduated from UCLA with a B.S. in math-computer science at age 15, and has written many articles on computer software. He is a member of the The American Law Institute. The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. 1 These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right. What about the seemingly odd two-clause construction, which some commentators have called "unusual," "special," and "nearly unique"? 2 It turns out that there's nothing odd about it at all. During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution's Free Press Clause, for instance, reads The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject, being responsible for the abuse of that liberty . . . . 3 Just as with the Second Amendment, the second clause secures a right, while the first justifies it to the public. And the two clauses of the Amendment are entirely consistent. The second clause guarantees a "right of the people," which is the right of each individual. The first clause explains that this right helps further a "well-regulated militia," a legal term of art that means "the body of the people capable of bearing arms" (here I quote from the New York Ratifying Convention's proposal that eventually became the Second Amendment 4) -- the entire armed citizenry, not some small National Guard-type unit. The current Militia Act, enacted in 1956 and derived from the original 1792 Militia Act, defines the "militia" as including all able-bodied male citizens from 17 to 45; 5 given the Court's sex equality jurisprudence, I feel comfortable saying that every able-bodied citizen from age 17 to 45, male or female, is a member of the militia. This is quite consistent with the second clause's securing an individual right to every person.