Tapsearch Com EditorDefending my defense of the Parker dissent
March 14th 2007 03:27
John Tabin has an interesting post about my Spectator article. His point:
"The argument that the Second Amendment doesn't apply to DC because the District is not a state is completely implausible, at least from an originalist perspective. The 'security of a free State' language was understood at the time of ratification to mean 'security of a free country' -- as Eugene Volokh notes, it's a formulation that comes from Blackstone's Commentaries. Blackstone used 'state' as a synonym for 'nation,' and so did the Framers; the word 'state' is used in that sense in several places elsewhere in the constitution, in reference to 'foreign state[s].' And remember that when the constitution was written, the US included the Northwest Territory; does it really make sense to think that the Framers would deliberately deny rights to Americans in that region?"
My response: Great analysis from the stated "originalist perspective." Problem is, that interpretation was not on the table for the Parker court. Lower courts are bound by precedent, and US v. Miller unquestionably interpreted the Second Amendment language to refer to "State" as in "the 50 states," not as in "country":
"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress."
Note "States," plural. Miller also cited the Constitution itself, when it details how the Militia functions. In this section, the Framers used "States" the way Miller interpreted the Second Amendment:
"...reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
Now, all this doesn't mean the Second Amendment meant "State" the same way, and I'm inclined to agree with Tabin and Volokh that the amendment should apply to the whole country. But within the limits of precedent, I maintain my thesis that the Parker dissent was far less anti-gun than it could have been.
By Robert VerBruggen
"The argument that the Second Amendment doesn't apply to DC because the District is not a state is completely implausible, at least from an originalist perspective. The 'security of a free State' language was understood at the time of ratification to mean 'security of a free country' -- as Eugene Volokh notes, it's a formulation that comes from Blackstone's Commentaries. Blackstone used 'state' as a synonym for 'nation,' and so did the Framers; the word 'state' is used in that sense in several places elsewhere in the constitution, in reference to 'foreign state[s].' And remember that when the constitution was written, the US included the Northwest Territory; does it really make sense to think that the Framers would deliberately deny rights to Americans in that region?"
My response: Great analysis from the stated "originalist perspective." Problem is, that interpretation was not on the table for the Parker court. Lower courts are bound by precedent, and US v. Miller unquestionably interpreted the Second Amendment language to refer to "State" as in "the 50 states," not as in "country":
"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress."
Note "States," plural. Miller also cited the Constitution itself, when it details how the Militia functions. In this section, the Framers used "States" the way Miller interpreted the Second Amendment:
"...reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
Now, all this doesn't mean the Second Amendment meant "State" the same way, and I'm inclined to agree with Tabin and Volokh that the amendment should apply to the whole country. But within the limits of precedent, I maintain my thesis that the Parker dissent was far less anti-gun than it could have been.
By Robert VerBruggen
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