The Volokh Conspiracy - Jack Rakove vs. Me on the Second Amendment,

at BloggingHeads. Here's my main disagreement with Jack: Unless I'm mistaken, Jack thinks that (1) the Second Amendment secures a right only to members of the militia, not to the people as a whole, and (2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define. The militia, Jack seems to be arguing, "was what [the Framers] meant to allow future Congresses, in their wisdom, to replace."

Yet this means that the Second Amendment secures a right against Congress -- but secures it only to those people whom Congress chooses to empower this way. That, in my view, is a mighty odd reading of the Second Amendment, which basically lets it be nullified by the very body that it was created to constrain.

And unless I'm mistaken, Jack basically acknowledged that the Amendment was indeed this empty. I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like. In any case, watch our discussion and see what you think.

	[Eugene Volokh, July 8, 2008 at 2:05pm] Trackbacks Jack Rakove vs. Me on the Second Amendment, at BloggingHeads. Here's my main disagreement with Jack: Unless I'm mistaken, Jack thinks that (1) the Second Amendment secures a right only to members of the militia, not to the people as a whole, and (2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define. The militia, Jack seems to be arguing, "was what [the Framers] meant to allow future Congresses, in their wisdom, to replace." Yet this means that the Second Amendment secures a right against Congress -- but secures it only to those people whom Congress chooses to empower this way. That, in my view, is a mighty odd reading of the Second Amendment, which basically lets it be nullified by the very body that it was created to constrain. And unless I'm mistaken, Jack basically acknowledged that the Amendment was indeed this empty. I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like. In any case, watch our discussion and see what you think.