Sunday, May 19, 2013

The Second Amendment--originally, a sop to slaveowners

An originalist interpretation of the 2nd Amendment would see it not as conferring an individual right but as a structural limitation on the power of the federal government to restrict the Southern states from forming militias to put down slave rebellions.

"...the Second Amendment was written to assure the South that the militia--the very same militia described in the main body of the Constitution--could be armed even if Congress elected not to arm them or otherwise attempted to "disarm" them.

"From our perspective today, this may seem like a small matter since Congress retained exclusive authority to determine the composition of the militia, and, thus, who could enjoy the right to bear arms.

"However, in the context of the concern and circumstances of the time, it was significant. The Amendment deals with keeping and bearing arms in the militia, subject to federal and state regulation. Therefore, to the extent original intent matters, the hidden history of the Second Amendment strongly supports the collective rights position."

--From the University of California at Davis Law Review article "The hidden history of the Second Amendment" by Carl T. Bogus, Professor of Law at Roger Williams University and author of "Buckley: William F. Buckley Jr. and the Rise of American Conservatism." reviewed with admiration by right wing newspaper The Washington Times.

No comments: