Academic journal article Fordham Urban Law Journal

II. the Embarrassing Standard Model Saga Continues

Academic journal article Fordham Urban Law Journal

II. the Embarrassing Standard Model Saga Continues

Article excerpt


For those who study historiography, the Second Amendment proves to be a fascinating subject. (336) As seen throughout Part I, from the 1970s to the present day, the right to arms has undergone an interpretative transformation that is virtually unrivaled. Standard Model writers see this transformation as restoring a forgotten relic to its proper podium, but historians see it as flipping the Constitution on its head and advancing a bundle of make-believe rights that would be ridiculed by the Framers in scathing dissents. Take for instance Noah Webster's sarcastic critique of the Pennsylvania Minority, which sought to propose a series of rights (337) that had nothing to do with establishing a constitutional republic:

   But to complete the list of unalienable rights, you would insert a
   clause in your declaration, that every body shall, in good weather,
   hunt on his own land, and catch fish in rivers that are public
   property. Here, Gentlemen, you must have exerted the whole force of
   your genius! Not even the all-important subject of legislating for
   a world can restrain my laughter at this clause! As a supplement to
   that article of your bill of rights, I would suggest the following
   restriction: "That Congress shall never restrain any inhabitant of
   America from eating and drinking, at seasonable times, or prevent
   his lying on his left side, in a long winter's night, or even on
   his back, when he is fatigued by lying on his right." ... But to be
   more serious, Gentlemen, you must have had in idea the forest-laws
   in Europe, when you inserted that article; for no circumstances
   that ever took place in America, could have suggested the thought
   of a declaration in favor of hunting and fishing. Will you forever
   persist in error? ... You may just as well ask for a clause, giving
   license for every man to till his own land, or milk his own cows.

Webster's critique is important because the drafters of the Bill of Rights sought to include those rights vital for a continuance of a democratic republic. (339) They were rights that the founding generation frequently referred to as the palladiums of liberty. The description is often misunderstood or taken out of context by legal commentators to assert broad individual rights separate from government. (340) However, the terminology was not intended to describe libertarian notions of liberty. In the eighteenth century, the "palladium of liberty" distinctly described rights or governmental checks that balanced the Constitution in favor of "the people." These rights and governmental checks included political representation, (341) the writ of habeas corpus, (342) the freedom of election, (343) the right to trial by jury, (344) and the freedom of the press. (345)

Most importantly for our purposes, one of the palladiums also included the right to keep and bear arms in a well-regulated militia. (346) Not once did the founder generation conflate or confuse armed individual self-defense--in private or public--as a palladium of liberty. The phrase was distinctly used to describe the right to keep and bear arms in a state sanctioned militia, and rightfully SO. (347) The truth of the matter is that a "well-regulated militia" was seen as crucial to a republic. This cannot be overstated enough. The constitutional body not only provided cost effective physical security, but it was the means and ends by which liberty was to be understood. Furthermore, it provided an efficient counterpoise to standing armies and an oppressive government. (348)

Of course, this was all theoretical and idealistic of the Framers. (349) The militia, even after the 1792 National Militia Act, never lived up to its intended constitutional and ideological purpose. (350) By 1818 the militia was described by one anonymous commentator as a "national curse." (351) Even Revolutionary War patriot, militia instructor, pamphleteer, (352) and Federalist Timothy Pickering wrote that a "well disciplined militia, as the palladium of liberty, is an empty phrase in the mouth of every Patriot. …

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