Tuesday, September 13, 2005

Titled: Thoughts on the wording of the Second Amendment

Most of the controversy over the Second Amendment arises from the fact that it has both a "militia clause," stating that a well regulated militia is essential, and then the "right to arms" clause. Prof. Volokh's article The Commonplace Second Amendment points out that the use of a prefatory clause stating a purpose was quite common in State constitution drafting of the time. (This makes sense. The idea of judicial review, of a court striking down laws as unconstitutional, was undeveloped at the time. As the Jefferson-Madison letters on the idea of a bill of rights suggest, a bill of rights could be seen as establishing certain rights beyond controversy, not to guide the courts, but to let the people know clearly when rights had been infringed, so that they might vote the scoundrels out, rise up in arms, or otherwise react en masse. So why not state why a right was important?)

It turns out Madidson did. Read the rest of the post to find out what it is he said.


Posted by Buck
posted on 9/13/2005 10:01:15 PM (Eastern Daylight Time, UTC-04:00)  #   

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