Wednesday, January 25, 2006

Bearing Arms

Timothy Sandefur at "Postive Liberty" looks at Akhil Amar's America's Constitution. I've always liked what I've read of Amar's work, so I'll have to get around to reading it at some point. I found particularly interesting Sandefur's summary of Amar's argument about the Second Amendment. The claim that the phrasing of the amendment doesn't suggest individual possession of firearms for self-defense is not right, I think; Blackstone, for instance, explicitly mentions as one of the absolute rights of individuals "the right of having and using arms for self-preservation and defense." There is no obvious way in which Blackstone's "having and using" would be significantly different from the Second Amendment's "keeping and bearing"; or, at least, I'd have to see the argument for it, since, for instance, there's no hint of an especially martial quality to 'bearing arms' in (say) Johnson's Dictionary, whic largely just treats it as a synonym of 'carry'. (But, as Sandefur notes, the Fourteenth Amendment adds another layer anyway.) It is true, though, that self-defense is not the justification given. In this, as in a number of other aspects, the Bill of Rights echoes the Virginia Declaration of Rights -- specifically, the beginning of section xiii:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state....

This suggests the probable intended meaning of the Second Amendment: The right of the people to keep and bear arms shall not be infringed because a free state needs a well-regulated militia, which needs people "trained to arms", i.e., who already know how to shoot. Other declarations of rights (e.g., the 1776 Constitution of North Carolina) sometimes give people the right to bear arms for the defense of the State; but Pennsylvania's 1776 Constitution and Vermont's 1777 and 1786 Constitutions explicitly give the people " right to bear arms for the defence of themselves and the state".

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