Hit & Run

"Unambiguously describing the Second Amendment as encompassing a personal right"

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At The Volokh Conspiracy, David Kopel highlights an important new article on St. George Tucker that has particular relevance to the debate over D.C. v. Heller and the original meaning of the Second Amendment:

St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone's Commentaries was the by far the leading legal treatise in the Early Republic…. Tucker's analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service. Justice Scalia's majority opinion in Heller quoted from Tucker's American Blackstone.

Justice Stevens' dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker's 1791-92 lecture notes described the Second Amendment as relating only to the militia.

David Hardy's article reviews Tucker's lecture notes, as they involve various freedoms enumerated in the Bill of Rights….

As for the Second Amendment, Hardy finds that Cornell's article, and therefore Justice Stevens' opinion, contains a major factual error: the militia language which Cornell quoted was not from Tucker's description of the Second Amendment. The language was from Tucker's explanation of Article I's grant of militia powers to Congress. Tucker's description of the Second Amendment comes 20 pages later in the 1791-92 lecture notes, and is nearly a verbatim match with the text Tucker's 1803 book, unambiguously describing the Second Amendment as encompassing a personal right for a variety of purposes, not just for militia service.

Whole thing here. Kopel's reason archive here. Brian Doherty on the story of D.C. v. Heller here.