More errors in the formerly State Department-distributed essay on the Second Amendment:

Monday I posted a list of seven errors in a State Department-provided Web page on the Second Amendment. (Here’s the cached page text; the current version, which just says that the essay is under review; and the PDF text, which still includes the essay, thanks to Bob Lunn for the pointer.)

     It turns out that there are still more errors:

1. “In many states regulations continued prohibiting . . . Jews . . . from owning guns.” I looked and asked, and couldn’t find any evidence at all of any such regulations — it’s hard to prove a negative, and I might be mistaken, but this looks like an error to me. (Please do correct me if I’m wrong.)
2. “Does the phrase ‘the people’ in the Second Amendment have the same meaning as it does elsewhere, for example, in the First Amendment’s ‘right of the people to peaceably assemble’? If it does, the argument goes, then ‘the people’ have a right to own a gun as much as they have the Fourth Amendment right to be secure in their homes and persons. The answer to this argument is that the courts have consistently said that the Second Amendment is different, and that the phrase has a different meaning.” Well, lower courts have taken this view as to the Second Amendment; but wouldn’t it have been relevant — especially given the “consistently said” claim — to quote some of this text from the Supreme Court case U.S. v. Verdugo-Urquidez (1990), which actually does equate “the people” of the Second Amendment with the same term in the First and the Fourth?
   

   Contrary to the suggestion of amici curiae that the Framers used this phrase [“the people,” in the Fourth Amendment,] “simply to avoid [an] awkward rhetorical redundancy,” “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the people of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble”) (emphasis added); Art. I, 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the people of the several States”) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

   Many thanks to Xrlq, who caught this and blogged it.

3. “This passage [from Blackstone’s Commentaries], however, points to historical facts often overlooked in the debate, namely, that the ownership of guns was strictly regulated in England. Only the nobility and the gentry could own arms . . . .” As best I can tell, this is not so: Englishmen were indeed allowed to own guns in the decades preceding Blackstone’s Commentaries and the Revolution. See Joyce Lee Malcolm, To Keep and Bear Arms 128-34 (1994); see also this article by Malcolm (text accompanying notes 141-65); King v. Gardner, 87 Eng. Rep. 1240 (1739); Wingfield v. Straford and Osman, Sayer, Reports of Cases Adjudged in the Court of King’s Bench 15 (1752) (the cases are cited by Malcolm, but I’ve personally checked them myself). There were laws restricting the use and keeping of guns for illegally poaching game, but ownership of guns for other purposes was quite legal. (Thanks to Johan Bakker for the tip.)

Again, I recognize that I may be making some errors here myself, and I will obviously post whatever corrections are needed, if any are.

     Incidentally, a reader asked why the State Department is producing this material. According to this page, works such as this are intended to acquaint foreign audiences with American law and culture:

The documents located here are electronic versions of publications originally produced in print by the U.S. Department of State. Print copies may be requested from the Public Affairs Section of any U.S. Embassy or Consulate . . . . According to the Smith-Mundt Act, products developed by the Bureau of International Information Programs are intended for foreign audiences; print copies may not be distributed within the United States.