Interesting debate at the Volokh conspiracy between David Kopel, New Orleans Gun Confiscation is Blatantly Illegal, and Orin Kerr, Response to David Kopel. Kopel’s original post has an update to respond to Kerr, who has a further post of his own.
I claim no relevant expertise, but in the past I have found Prof. Kerr’s work on statutory interpretation to be of the highest quality (we part company sometimes on constitutional interpretation). As for Kopel, well, Kopel’s approval of shooting New Orleans ‘looters’ is a view that justly revolts reasonable people. Of course the demerits of a speaker don’t necessarily reflect on his cause.
Personally, I do not think private ownership of guns has on balance proved to be a social good, espeicially in urban areas, but I recognize that the Second Amendment protects them (up to a point, whose exact extent I remain uncertain about) whatever I may think. More generally, if we’re going to argue for expansive constructions of other parts of the Bill of Rights — and I sure am — I think the Second Amendment gets to come along for the ride. Thus, although my knee jerks that the confiscations are suspect, I wouldn’t be at all surprised if a court would side with Prof. Kerr.
That’s an interesting point about the relatedness of expansive readings. I’d never thought about the issue in quite that way. I wonder, though, how the various expansive readings are related. What I mean is that it might be argued that a fairly expansive reading of the First Amendment is implicit in any reasonable interpretation of the text, while there are reasonable ways of reading the Second Amendment as having a very constrained meaning. Put another way, the argument is that you can’t make sense of the First Amendment except as an attempt to carve out a space for the individual to form and act on her own conception of the good, whereas you can make sense of the Second Amendment as being about the maintainance of a militia rather than the protection of an individual right. Or something like that.
The 2nd amendment to the constitution allows gun ownership, true, but it goes on to state “for the purpose of forming a militia.” So I have always wondered why no militia is formed.
I mean there is this long process of paperwork involved, supposedly, before you can legally buy a gun. Why don’t they sign up a gun owner then and there for the militia? What militia? Well the one the state is supposed to provide for its defense. Yeah, yeah people say that’s the national Guard, but I don’t think that’s what was meant in the beginning.
So, theoretically every gun owner ows the state some block of time on a regular basis to provide such defense. I think every gun ownder should spend 2 weeks to a month a year in service to the state (per gun). So if a man owns 3 guns he should be spending 6 weeks to 3 months away from his family and job and be trained to assist the state in which he lives in some capacity.
A simplistic solution – sure. But one I think it more to the intent of the framers of our constitution than the NRA would like us to believe.
Yes, the Second Amendment unlike the others, has a motivational clause. This could be read that as saying that the right to bear arms outside the context of a militia can be much more heavily constrained than in it. (And certainly suggests we could make tougher rules about what it takes to be part of ‘the militia’ than we have to date.) The scholarship is, however, voluminous and far from unanimous in this area and I simply haven’t studied it enough to have a firm view.