Constitutional Law

Academics for 2nd Amend. amicus brief online

At ScotusBlog.

Very tired. But will add some commentary.

Argument I is a strong attack on DC's argument over what the 2A was meant to do. I think it pretty well levels that.

Argument VI deals with their dismissal of the PA minority and the NH ratifying proposals. They shrug these off, saying that Madison took the VA language, not the text of those proposals, hence they are irrelevant. BUT we show that there is no evidence that anyone at the time thought that Madison's language was meant to differ with those earlier measures, and much evidence that Americans saw his language as guaranteeing the same rights sought by PA & NH.

At 9 n.7 we hit at DC's claim that, well, maybe the First Senate declined to add into the BoR a statement that States could arm the militia, because it was redundant -- that's what the Second Amendment meant, and they already had written that up. We point out a VA Senator who wrote angrily about losing the vote -- he certainly didn't think the matter had been taken care of!

At 11-12 we point that the Framers HAD the equivalent of unorganized militias, but required them to be armed. They were excused from drill and muster, but not from owning arms.

At 13, we give a judo flip to the argument that the preamble must control the operative clause.

At 16 we point out that the Framers were familiar with *friendly* governments seizing arms when needed in an emergency.

At 20, n. 18, we point out that treating the militia as State controlled is not entirely accurate.

At 22-23, we discuss Federalist No. 26, I think with better analysis than is generally employed. It has to be read carefully.

At 30 we cite an interesting event in the First Congress, which I blogged here long ago.

And some preemptive attacks (remember DC gets to file the last, reply, brief and may try to shift ground)

At 11, n. 9 preempts any try in reply to shift on the theory of purpose.

At 18, n. 14 hits at a theory DC amici cited, in a yet unpublished law rev. article, claiming PA's 1776 guarantee was meant to allow a mandatory militia (PA didn't have one).

At 31 we preempt a move DC might make, arguing that "right of the people" is somehow less individualist than a right of "persons."

UPDATE: if anyone wishes to contribute toward the brief, just click here. There's a Paypal link on upper right of page. If you're not a PayPal member, just click at bottom of the Paypal page and you can enter ordinary credit card data.

Full post as published by Of Arms and the Law on February 11, 2008 (boomark / email).