Posted on 01/11/2020 10:14:27 AM PST by ChildOfThe60s
Thomas Cooley was the most renowned American legal authority of his age.
Cooley became the first Dean of the University of Michigan Law School, and later sat on the Michigan Supreme Court; Roscoe Pound named him as among the top ten American judges of all time, and one scholar considers him "the most influential legal author of the late nineteenth and early twentieth centuries.
His book, The General Principles of Constitutional Law was released in 1880. Cooley treated the Second Amendment as an individual right. Indeed, Cooley went further and pointed out that if the right to arms were limited to militia-related arms possession, then the guarantee would be meaningless.The very government that it was meant to check-and that could control the definition of the militia-would be in a position to define its boundaries and negate any checks upon itself, defeating the Framers' intent.
"It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.
The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But... if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose."
Considering how leftist lawyers seem to be, I wonder if the constitutional law classes in law school actually teach the Constitution.
My SIL's son (she is a hard core progressive Jewish woman from NY) is a lawyer, works for the feds in DC (ethics division - I LMAO every time I say that).
At the time Obama care was being shoved up our asses he was in law school and wrote a 1 page opinion piece which purported to prove the constitutionality of the law. I read it. It was a juvenile piece of regurgitated liberal propaganda.
IMO, it looked like he had never studied the Constitution or the Federalist Papers at all.
They did.
Yes, excellent reference material. Thanks. My friend graduated from TC Law school. Sheesh, I haven’t seen him in 30 years. Time flies when you’re working (sometime 2-3 jobs) and raising a family.
The second amendment is a bit incoherent. But its intent is clear. The militia, in those times were drawn from the average citizens of the area.
Historically it has always been recognized that the individual has the right to self defense, and has had the right to carry weapons appropriate to that end. In another era, it might have been a short sword, in the 18th century it was a rifle and pistol, and the reference to militia tells us he had the right to the kit equivalent to an infantryman’s.
“The second amendment is a bit incoherent.”
It’s far less incoherent than almost any Court decision regarding it in the last 75 years.
L
The following is not my wording, but lifted from a piece on the subject. I think it makes it pretty clear:
What is a militia?
At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns, colonies, and eventually states. “[When the Constitution was drafted], the militia was a state-based institution,” says Rakove. “States were responsible for organizing this.
“What did it mean to be well regulated?
One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge.
“Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined,” says Rakove. “It didn’t mean ‘regulation’ in the sense that we use it now, in that it’s not about the regulatory state. There’s been nuance there. It means the militia was in an effective shape to fight.”
In other words, it didn’t mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.
Good post.
One of the big non-arguments I hear is when people say, so do you have the right to a nuke?
The first answer is, if you need a nuke to defend yourself against your government, you’ve got big problems, and the constitution has already been abandoned.
But in seriousness, by natural law, you have the right to defend yourself, which means generally you have the right to weapons appropriate to the likely threat. In the street, a pistol. During a home invasion, a shotgun. During a riot, a rifle. You have the right to what you need. It isn’t up to the government to decide what you need.
But historically people have had the right to own the equivalent of a infantryman’s kit. Infantrymen don’t carry nukes, but if they start carrying them to police you, then all bets are off.
Well, as an attorney, I would say that Cooley’s position still holds.
Specifically, in 2008, in the case of District of Columbia v. Heller, the SCOTUS for the first time invalidated a law regulating guns and found that the Second Amendment is not limited to protecting a right to have firearms for militia service. This case concerned the constitutionality of a 32-year-old District of Columbia ordinance that prohibited the possession of handguns and imposed significant restrictions on long guns. The SCOTUS, in a 5-4 decision, invalidated the ordinance as it violates the Second Amendment.
I rest my case. :-)
July 5th is Second Amendment Day.
Spend the evening on your front porch, surrounded by Americans you love...your guns.
When appropriate, engage the curious dog-walkers and joggers. Explain your weaponry and your belief in the Second Amendment. If the local constabulary shows up, we’ll, don’t talk to cops and concurrently celebrate the 4th and 5th Amendments.
Leave your flags up one more day. Put away that bunting on the 6th. On the fifth, continue to celebrate Life, Liberty and the Pursuit of Happiness!
And the hardware that allows us to keep it.
They later expanded upon it in McDonald v City of Chicago.
L
Yes, you are correct.
In the McDonald (2010) case, the Court ruled that the Second Amendment applies to state and local governments. I would note that he District of Columbia is part of the federal government and thus the Court had no occasion (in the Heller case) to consider that the Second Amendment applies to state and local governments.
That said, what is also important to point out is that in terms of the Heller and McDonald cases, the Court focused only laws associated with the prohibition of virtually all possession of handguns. The Court had no occasion to consider the constitutionality of more limited regulations.
LR
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