Classes #23: Second Amendment I and Leaseholds I

DC v. Heller

Class 23: Second Amendment - I

• District of Columbia v. Heller (1657-1680) / (931-954)
• Supplement: Chapter 60

Class 23: Leaseholds I: Leasehold Estates

• The Term of Years, 461-462
• The Periodic Tenancy, 462
• Problems, 462
• Tenancy at Will, 463
• Garner v. Gerrish, 463-465
• Questions, 465-467
• Tenancy at Sufferance: Holdovers, 467-468
• The Lease, 468-471
• Selection of Tenants, 471-478

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Comments

[Dan Schiavetta]

As expected, misleading his class about the history of Second Amendment jurisprudence.

[ThePublius]

Based on what? Did you watch the 44 minute video, or complete the reading? Or do you just harbor a general disdain for Prof. Blackman, or the 2nd Amendment, or both?

You should be more specific in your criticism, else it's just a throwaway comment.

[Dan Schiavetta]

He says the collective rights interpretation was the view of “gun control advocates”, when in fact it was the universal view in the courts and in the academy. It was called “one of the most settled questions in American law”. Josh is too young to remember those days personally but that’s no excuse.

[ThePublius]

See my misplaced comment, below.

[Absaroka]

"it was the universal view in the courts and in the academy."

I'm old enough to remember that that isn't remotely true.

For one example, I read an account once where one of the (speaking of brave men!) Ivy League students went south to help with voter registration in the Jim Crow era. When he got to his host family, there was a bit of hubbub ... a deputy had stopped Gramps earlier in the day and confiscated his shotgun. The Ivy has a book with the text of the Constitution and says 'He can't do that! Constitution! 2nd Amendment!'. They chat some more, and he asks where Gramps has gone. It turns out Gramps took the book and is going to see the sheriff. Oh no! Gramps is going to get killed! They all head to town to try and head Gramps off, only to meet him on the way back with the shotgun. The sheriff, confronted with the text, gave back the shotgun.

I grew up around military bases as an army brat in the 50's and 60's, and the first time I heard the notion that the 2nd didn't confer an individual right was 1990 or so. The collective rights view may have been common in New York, but it was unheard of in much of the country.

Or take the infamous Dredd Scott decision, where Chief Justice Taney says that blacks can't be citizens because "It would give to persons of the negro race ... the right to ... keep and carry arms wherever they went" just like anyone else could. He solved that conundrum not by saying citizens couldn't keep and carry arms, but by denying that blacks could be citizens.

[Commenter_XY]

My leagl education continues. Keep posting these videos. It has been immensely educational.

[ThePublius]

I'm not sure I agree with that, capt. I'm not a lawyer, but I know that in many places in the US since the founding the 2nd was taken literally as an individual right. That it was viewed as a collective right is relatively recent - maybe even 20th cent.? Even in US Code a member of the militia is expected to appear, when called, bearing the arm in common use in the military. So, obviously, keep and bear is individual from the founding.

[Dan Schiavetta]

Whatever might have been the situation before, U.S. v. Miller, 1939, disposed of the idea of an individual right. It was never questioned, by any court, until the late 1990's, coincidentally after the gun industry started funding legal "research" on it. In fact the Second Amendment, on its face, serves only to preserve militias, which today exist only in the form of the National Guard. To argue otherwise is to create a "penumbra" (or maybe "emanation").

I have heard it argued here that Miller has been misread, that it actually dealt only with shotguns. But you can do that to a lot of precedent. Did you know that the basis of judicial review depends on a misreading of Marbury v. Madison? (It was only dicta, and Marshall himself declared it so in a later opinion.)

Either way . . . what Josh told his class is misleading. He might have well said, "Democrats argue that the earth revolves around the sun."

[ThePublius]

Capt., you'll have to be more specific in citing Miller, as both sides of this debate claim it supports their position. I assert it supports mine. Note this text from the decision:

"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.

8
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Further, regarding your statement regarding the National Guard, you are incorrect. From 10 U.S. Code § 246 - Militia: composition and classes:

"(a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b)The classes of the militia are—
(1)the organized militia, which consists of the National Guard and the Naval Militia; and
(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

[Dan Schiavetta]

Such a "militia" is moribund and a "dead letter" -- when was the last time such a militia was called out? -- unless you're talking about the "organized" militia, that being the National Guard.

Also, you are saying that men have the right to own guns, but not women.

[ThePublius]

I'm just saying what the law says.

[ThePublius]

The last time a militia that was not part of the National Guard was called up was in March, 2020, when elements of the Georgia State Defense Force were activated to assist in Georgia's response to the COVID-19 pandemic.

22 states and Puerto Rico have such active militias.

[Dan Schiavetta]

The Georgia State Defense Force looks like an "organized" militia to me. Setting aside the fact that the COVID-19 response did not require armed defense of a free state . . . You have to apply, i.e., an application that might be rejected, and then undergo an extensive training program. You can't just walk in with a gun, either.

[Bubba Jones]

I found this an interesting summary.

https://www.law.cornell.edu/constitution-conan/amendment-2

But I'm not sure why lawyers struggle so mightily with the concept that the 2nd Amendment serves to protect the State Militia by preventing the Federal Government from disarming the individuals who comprise the State Militia.

The Miller case seems to spell this out reasonably well. The Federal government could regulate individual ownership of sawed off shotguns because that individual would not be expected to use one in a State Militia.

The 2nd Amendment was written to prevent the Feds from disarming the States. The State Militia can't exist without the ability of individuals to keep and bear arms. Therefore the Federal government cannot infringe the individual ownership of Militia weapons.

This isn't about hunting or concealed carry. Those rights are protected elsewhere.

[Dan Schiavetta]

The 2nd Amendment was written to allow state militias (remember, there was no standing federal army yet) to put down rebellions such as what Shays had recently attempted. It was to ensure "the security of a free state". States were the guarantors of the Constitutional system and the Framers didn't want Congresspeople sympathetic to such terrorists to dilute the power of the state militias by passing federal laws eviscerating them.

[ThePublius]

I disagree, and perhaps I need only point out that your assertion is textually wrong; the Amendment doesn't "allow" anything, it proscribes infringement.

[Dan Schiavetta]

Women's right to vote can't be infringed (19A). The purpose of the amendment is to allow women to vote.

[Absaroka]

Great example.

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

Both of the form "the right of citizens/people to XXXXX shall not be abridged/infringed".

One means ... women have a right to vote. The other means ... the people have no right to keep arms!.

[Mike45]

The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the power of free states to form and arm militias. These two things are not mutually exclusive, and doesn't give the state any power to restrict individually owned arms.

This is reinforced by the 10th amendment. The Bill of Rights was passed as an interlocking package.

The tenth amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people."