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." __________________________________________________________________ "'I was drunk' is a polite ) [d--ar--y] at [indirect.com] way of saying 'I shed my in- ) http://www.indirect.com/www/dhardy hibitions and did exactly what)_____________________________________ I felt like doing, and if you provoke me, I'll do it again.' This gives people fair warning and tells them tactfully to mind their own business." P.J. O'Rourke, Modern Manners.