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Second Amendment � �Original� and �New� Meanings?
on January 19, 2001
Professor Amar's position regarding "original" and "new" meanings of the Second Amendment in The Bill of Rights: Creation and Reconstruction is interesting. Many scholars, having only recently started to study this amendment, develop conclusions based on limited information. Credible scholarship involves a review of as much literature as possible and an objective presentation of all findings.
It is Professor Amar's view that the Creation era meaning of the Second Amendment was different from the meaning put forth during the Reconstruction era. The "original" amendment involved primarily a collective political right of "First-Class Citizens." The Reconstruction era meaning involved an individual right under the Fourteenth Amendment.
On page 47 the Second Amendment is compared to a "proposed amendment favored by some Pennsylvania Anti-Federalists: `[T]he people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game ....'" Amar states that "this text puts individual and collective rights on equal footing." After stating that the right to keep and bear arms is a political right, Amar states on page 49 that "... to see the un-Reconstructed amendment as primarily concerned with an individual right to hunt or to protect one's home is like viewing the heart of the speech and assembly clauses as the right of person to meet to play bridge or to have sex."
What is interesting is the "6" found after the word "sex." The note on page 329 reads, "I have been importantly influenced here by the pioneering work of Elaine Scarry. See. e.g., Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the right to Bear Arms, 139, U. Pa. L. Rev. 1257 (1991)." In footnote 34 on page 1268, Professor Scarry states, "The second amendment cannot be categorically separated from the pleasure of hunting since the European and American history of that pleasure is itself entwined with issues of distributive justice." Following this statement, several examples indicate an intertwining of hunting with bearing arms in a militia. One is the same proposed amendment from the Pennsylvania Anti-Federalists mentioned by Amar on Page 47. Another explains the value of hunting in relation to militia service: " ... shooting game as a way the population remains limber in the use of its arms." We can only assume Amar missed footnote 34 in Professor Scarry's essay.
Professor Amar provides no additional citations supporting his views about the Creation era Second Amendment. He does provide numerous citations not supporting his view in the asterisk note on page 48 and footnote 5 on page 328. He states, "There is some fuzziness at the edges ..." and "For arguments supporting a broad reading of the amendment as protecting arms bearing outside of military service, see ...." Not included are Halbrook's That Every Man Be Armed: The Evolution of a Constitutional Right (1994), Levinson's, The Embarrassing Second Amendment, 99 Yale L.J. 637, 644 (1989); and others often cited as authoritative sources for understanding the Second Amendment.
Also interesting is Amar's discussion of how Blackstone's Commentaries relate to the "new" Reconstruction meaning of the Second Amendment. On page 110 Amar states that "Blackstone's Commentaries was a runaway best-seller in the colonies." In discussing the original meaning of the First Amendment on page 32 and "Searches, Seizures, and Takings" on page 79 he cites the Appendix of St. George Tucker's edition of Blackstone's Commentaries. But on page 262 in discussing "Reconstructed Rights," Amar indicates that the Founding Fathers did not have Blackstone in mind in thinking about the "original" Second Amendment and those involved in passage of the Fourteenth Amendment did. Why does Blackstone's Commentaries and Tucker's edition of the Commentaries lend understanding to the original meaning of the First Amendment and "searches, seizures, and takings" and not to the original meaning of the Second Amendment? In §'s 199 and 200 Blackstone discussed as an "Absolute Rights of Individuals" the right to "having and using arms for self-preservation and defense." On page 300 of the Appendix to his edition of Blackstone's Commentaries St. George Tucker wrote: "The right of self-defense is the first law of nature ... Wherever ... the right of the people to keep and bear arms is under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
Professor Amar might read Halbrook's academic book or he might consider my non-academic book A Little Handbook on the Second Amendment.
Dr. Joseph L. Bass Bassjl@aol.com