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Thursday, July 29, 2021

The Gun, The Ship, and the Pen

Part of my vacation was spent reading Linda Colley's terrific new book on global constitutionalism. Anyone with an interest in the political side of constitutions should read The Gun, the Ship, and the Pen. I may have more to say about the book later, but here's one implication that hit home for me.

Colley's account undercuts Heller. If you are persuaded by her thesis that the rise of constitutionalism was driven by the need to fight wars effectively (in Europe and in the United States), then the individual right Heller said was part of the 1791 understanding of the Second Amendment is far less plausible than the collective right identified by the Heller dissenters. (Granted, you could defend Heller on other grounds, but the Court focused on Founding-era materials.) Colley does not make this argument, as she's not interested in the issue. But I am.

Posted by Gerard Magliocca on July 29, 2021 at 09:44 PM | Permalink

Comments

very interesting because Individual rights can very well be promoted in another way. This could very well threaten much federal gun legislation.

Posted by: abortion Johannesburg | Aug 4, 2021 12:08:09 AM

Consider further the musing of the most progressive of the lot, a year after the Déclaration, and only a few years before his being fully empowered to implement hope and change and death and blood.

Etre armé pour sa défense personnelle est la droit de tout HOMME; être armé pour défendre la liberté et l'existence de la commune patrie est le droit de tout CITOYEN. Ce droit est aussi sacré que celui de la défense naturelle et individuelle dont il est la conséquence, puisque l'intérêt et l'existence de la société sont composés des intérêts et des existences individuelles de ces membres. Dépouiller une portion quelconque des citoyens du droit de s'armer pour la patrie et en investir exclusivement l'autre, c'est donc violer a la fois et cette sainte égalité qui fait la base du pacte social, et les lois les plus irréfragables et les plus sacrées de la nature.

Robespierre (December 5, 1790).

Posted by: Anonymous Bosch | Aug 2, 2021 6:24:02 AM

Indeed, Heller did mess it up: it's patently an individual right, traceable in the common law, through Blackstone, through the Bill of Rights of the Glorious Revolution, back to all Englishmen (not just Protestants) pre-1662, and all the way back to the individual DUTY to practice archery on Sundays using one's own bow and arrows.

More ought to have been said by the majority about the Assize of Arms of 1181, about the exemption of bows from custom duties in 1503, the 1688/9 Bill as a restoration of ancient individual rights in response to the authoritarian 1662 Act, about Blackstone and his influence, etc.

Not having read Colley's work, if its thesis is indeed that the rise of constitutionalism was driven by the need to fight wars more effectively, then ou est le droit de port d'armes dans la Déclaration des droits de l'homme et du citoyen de 1789 - if its American analogue and British mother are collective ones after all? Scholarship on the debates of the Assemblée nationale constituante establish that its members had discussed the possibility of incorporating such a right and were well aware of the Brits' views on the matter. They nevertheless rejected its inclusion because they didn't want Les Deplorables, as individuals, to be armed (much to Mirabeau and certain others' chagrin)...

Posted by: Anonymous Bosch | Aug 2, 2021 5:00:18 AM

Justice Alito in McDonald v. Chicago (incorporation of 2A) noted:

"By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense."

Some "originalist" approach of the 2A (and I don't invite originalism) should recognize the core interest of the 2A was to protect state militia (the Bill of Rights was only applied to the federal government anyway). This could very well threaten much federal gun legislation, if one is so inclined. Regulation of D.C. itself is a bit of a constitutional joker as would be regulation of territorial areas. But, the one size fits all approach avoids that messiness these days.

Individual rights here can very well be promoted in another way -- Thomas likes the privileges or immunity approach. Anyway, yes, good historical accounts will show originalism makes a mess of history. You can say the same thing about religious liberty, as seen by Justice Sotomayor's dissent in a major school funding case.

Posted by: Joe | Jul 30, 2021 10:59:33 AM

Seems very interesting, although one should differentiate ( speaking of constitutions) between origin on one hand, and on the other, nature and function.

Here good review I have encountered (Guardian):

https://www.theguardian.com/books/2021/apr/24/the-gun-the-ship-and-the-pen-by-linda-colley-review-how-the-modern-world-was-made

Now speaking of origin (wars, political rivalry etc) and, speaking of Heller, I quote(from the syllabus):

"The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved."

Here to Heller by the way:

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Thanks

Posted by: El roam | Jul 30, 2021 5:43:33 AM

Scholarship surrounding the Second Amendment is a mess. Heller didn't help, but the collective right thesis is equally unsatisfactory.

Posted by: thegreatdisappointment | Jul 30, 2021 2:42:10 AM

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