Constitutional Law

My article on St. George Tucker is online

"The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights," 103 Northwestern U. L Rev. Colloquy 272 (2008).

The pdf version is here and the html version here.

At 277 I get into Tucker's notes on the 2d Amendment. At 278-79, I get into the Stevens dissent in Heller for having claimed that Tucker was ambivalent on the 2A. The majority cited Tucker's great 1803 Blackstone, where he had a number of clearly individual-right statements about the 2A. The dissent says that Tucker was ambivalent, his lecture notes from 1791-92, closer to the Framing, were more state power over the militia.

In fact, the documents cited were from Tucker's lecture on the powers of Congress over the militia, when he mentions the 2A and talks about State power to arm the militia if Congress neglects the issue. He gets to the Bill of Rights 20 pages farther on. And when he does, he discusses it in the same words he would later use in Blackstone, often literally the same words!

Full post as published by Of Arms and the Law on December 22, 2008 (boomark / email).