Saul Cornell's "new paradigm" for the Second Amendment

[MTC]

The views of Cornell and others featured prominently in a review article here.

Recently a group of legal historians has offered a fresh approach to answering these questions. Expressing frustration with a seemingly intractable debate between the collective rights and individual rights interpretations of the Second Amendment, these scholars, including Saul Cornell, H. Richard Uviller and William G. Merkel, and David Konig, have sought a "new paradigm." Proponents of the "new paradigm" view the right to keep and bear arms as the right of persons, exercised collectively, and inextricably linked to the civic obligation of service in a "well regulated militia." In the words of Saul Cornell, the right to keep and bear arms should be understood as a "civic right."

(footnote 4)

For collective rights and statist interpretations, see Garry Wills, "To Keep and Bear Arms," New York Review of Books 42 (1995): 62–73; Saul Cornell, "Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory," Constitutional Commentary 16 (1999): 221–45; Carl T. Bogus, "The Hidden History of the Second Amendment," University of California at Davis Law Review 31 (1997): 309–408; and the contributions of Michael Bellesiles, Jack Rakove, and Paul Finkelman to the "Symposium on the Second Amendment," Chicago-Kent Law Review 76 (2000).

In his review A New Paradigm for the Second Amendment this theme emerges:

If Second Amendment rights have atrophied in modern America, it is not because of too much government regulation, but ironically it is the absence of regulation that has produced the anemic version of the Second Amendment under which we now live. If Americans were willing to undertake the burdens of militia service and sacrifice some significant portion of their individual liberty to attain this collective ideal, then the Second Amendment might be restored to its former robust character.

He also wrote this a few years ago...
It's Time for Gun Control Proponents to Reclaim the Constitutional High Ground

They also staked out another right that has not been much talked about recently in this debate: a right to be free from the fear of gun violence.

So..
what do you think of the "new paradigm"?

 

[CarmelHP]

Same old crap that they've been shoveling since 1934.

 

[lashicoN]

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

There is no room for interpretation. The framers who wrote that wrote it very clearly.

Militia: 1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

In order for the militia (citizens) to be well regulated (well equipped) the people must have the right to keep and bear arms. This right is necessary for the state to be secure.

And I didn't have to go to law school to read what the second Amendment means. No one does. It is very plain and simple.

 

[JDonhardt]

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

There is no room for interpretation. The framers who wrote that wrote it very clearly.

Militia: 1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

In order for the militia (citizens) to be well regulated (well equipped) the people must have the right to keep and bear arms. This right is necessary for the state to be secure.

And I didn't have to go to law school to read what the second Amendment means. No one does. It is very plain and simple.

The militia spoken of by the framers are not a part of the military at all.

The well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say "A Militia well regulated by the Congress, being necessary to the security of a free State" -- because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the "security of a free State".

(Daniel J. Schultz wrote that)

 

[UncleMike]

He also wrote this a few years ago...
It's Time for Gun Control Proponents to Reclaim the Constitutional High Ground

He should have written;
It's time for Gun control Proponants to Be Buried In The Ground.

Mike

 

[thompal]

Same old crap that they've been shoveling since 1934.

In the 18th century it was never conceived that people would NOT own and use firearms for protection, for hunting, and for enjoyment. The most basic of individual rights is that of feeding yourself, and of keeping yourself alive by defending yourself. The right of "life" surely means that you have the right to defend your life. The pursuit of happiness must mean that you have the right to engage in activities you find enjoyable, as long as those activities harm no other person.

No, the 2nd Amendment protects the right of people to dissuade a tyrannical government, and to replace that government when all other recourse fails. If, as a whole, "the people" become too sheeplike to exercise that right, it is watered down by disuse, although it still exists. The more it is disused and the more it is watered down, the more difficult it is to expect it to remain intact, however. Note that it doesn't require 100% participation by the people, nor even 50%. There were fewer than that actively militarily engaged in the Revolution. Surely the authors of the Constitution wouldn't expect more citizens to participate in the future than what they could expect?

Don't even waste your time reading those anti-Constitution propagandists, they're just searching for a way to impose their will on the public, and hoping to have the police and military do it for them. They are simply a bunch of mamby-pamby, pantywaisted, limpwristed statists who hope to have The King do their bidding.

No matter what they say, or how many times they say it, the truth of what the document says is pretty clear, and the other writings of the Founding Fathers leave no doubt in the minds of the rational person.

 

[Redskinsfan]

He also wrote this a few years ago...
It's Time for Gun Control Proponents to Reclaim the Constitutional High Ground

He should have written;
It's time for Gun control Proponants to Be Buried In The Ground.

Mike

That is funny!!


Good one.

Terry