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Monday, November 05, 2007

Is Dick Cheney Necessary to the Security of a Free State?

In re-reading the DC Circuit's famous recent Second Amendment decision in Parker v. District of Columbia today, I was struck by a passage discussing the Second Militia Act, passed by Congress in 1792.  As the opinion notes, one provision

exempts from militia duty "the Vice President of the United States, [executive branch officers and judges], Congressmen, custom house officers, . . . post officers, . . . all Ferrymen employed at any ferry on the post road, . . . all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states."

Interesting!  The late David Currie's magisterial account of the Constitution in Congress gives some reasons why these individuals might have been exempted, which in my reading involve both the essential nature of the services provided by these individuals and also, perhaps, questions of federalism.  But the Parker panel uses this provision for a somewhat different purpose: to emphasize the popular nature of the Founding-era militia.  The court notes that the militia did not, by virtue of these few exclusions, "lose its popular character": "'the well regulated Militia' was not an elite or select body."

Could we expand on this argument somewhat, though?  If we keep in mind both the popular nature of the militia and its status as a check on tyrannical central (and state?) governments, perhaps we could argue that even if the Second Amendment protects the right to keep and bear arms as a broad individual right, and not just as a collective or limited-purpose right, the members of the federal government, as the officers of the very state against whom gun ownership is a last-resort check, enjoy no such rights. 

Far-fetched, I admit: surely our government is composed of "the people" as well.  But worth a try, perhaps: remember that Vice President Cheney will still be in office for another fifteen months or so.  That's a lot of potential bloodshed we could avoid.   

Posted by Paul Horwitz on November 5, 2007 at 03:30 PM in Constitutional thoughts | Permalink

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