From: [d--ar--y] at [indirect.com] (David T. Hardy)
Newsgroups: talk.politics.misc,talk.politics.guns,misc.legal,az.politics
Subject: Professors Cottrol and Diamond on the Second Amendment
Date: 11 Nov 1995 19:09:59 GMT

Robert Cottrol is professor of law at Rutgers (Phd from Yale, JD from
Georgetown); Raymond Diamond is prof. of law at Tulane (JD, Yale);
their joint paper on the subject was delivered at the annual meeting of
the American Society for Legal History and at the Harvard Legal History
Forum, and was recently reprinted as "The Second Amendment: Towards an
Afro-Americanist Reconsideration," 80 Georgetown Law Journal p. 309. In
short, this isn't a puff piece in Parade Magazine or the NY Rev. of
Books.

   Their initial conclusion is that the second amendment was indeed
meant to guarantee an individual right, and indeed looked toward
universal armament of all citizens:

     "But others feared that the Militia Clause [of the original,
pre-Bill of Rights constitution] could be used to disarm the population
as well as do away with state's control of the militia. Some critics
expressed fear that Congress would use its powers to establish a select
militia, a group of men specially armed and trained for militia duty.
Richard Henry Lee of Virginia argued that that select militia might be
used to disarm the populace and in any event would pose more of a
danger to individual liberty than a militia composed of the entire
population. .... The fear that this new congressional authority could
be used to both destroy state control over the militia and to disarm
the people led delegates to state ratifying conventions to urge
measures that would preserve the traditional right.
     ..... Madison, author of the second amendment, was a vigorous
defender of the concept [of a universal militia]. He answered critics
of the Militia Clause provision allowing Congress to arm the militia by
stating that the term 'arming' meant only that Congress's authority
extended only to prescribing the types of arms the militia would use,
not to furnishing them. But Madison's views went further. He envisioned
a militia consisting of virtually the entire white male population,
writing that a militia of 500,000 citizens could prevent any excesses
that might be perpetrated by the national government and the regular
army."

The authors go on to demonstrate that fear of southern governments
disarming black citizens played a major role in debates over the 1866
Civil Rights Act, which in turn led into the 14th Amendment:

"In 1865 and 1866, southern states passed a series of statutes known as
the Black Codes. .... southern states passed legislation prohibiting
blacks from carrying firearms without licenses, a requirement to which
whites were not subjected. .... The restrictions in the Black Codes
caused strong concern among northern Republicans..... The news that the
freedmen were being deprived of the right to bear arms was of
particular concern to the champions of negro citizenship. For them, the
right of the black population to possess weapons was not merely of
symbolic or theoretical importance; it was vital both as a means of
maintaining the recently reunited Union and as a means of preventing
virtual re-enslavement.... [Footnote citing Rep. Clarke, debates on
1866 Civil Rights Act: 'Who were these men? [those being disarmed] Not
the present militia, but the brave black soldiers of the Union,
disarmed and robbed by this wicked and despotic order, and Rep. Hart,
who described the 'republican form of government' which States must
have: 'A government ... where 'no law shall be made prohibiting the
free exercise of religion, where 'the right of the people to keep and
bear arms shall not be infringed....']"

Their conclusion:

"Much of the contemporary crime that concerns Americans is in poor
black neighborhoods, and a case could perhaps be made that greater
firearms restrictions might alleviate this tragedy. But another,
perhaps stronger, case can be made that a society with a dismal record
of protecting a people has a dubious claim on the right to disarm them.
Perhaps a re-examination of this history can lead us to a modern
realization of what the framers of the Second Amendment understood:
that it is unwise to place the means of protection totally in the hands
of the state, and that self-defense is also a civil right."

__________________________________________________________________
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