The Second Amendment: Structure, History, and Constitutional Change

Part I of the Article engages the revisionists squarely on the turf they have staked out: the intent of those who framed and ratified the Second Amendment. Here I credit the revisionists with some important insights. Their research reminds us how greatly the world in which the Second Amendment was adopted differed from our own. This perspective helps us understand how the Founders could have placed the right to bear arms on par with the right to free speech--a decision that baffles many modern Americans. Yet while the revisionists correctly perceive that the right to keep and bear arms was crucial to the Founders, they misunderstand precisely why the right was so important. I will argue that the Founders\u27 overriding concern was to ensure that the new nation\u27s military force would be composed of state militias instead of, or at least in addition to, a federal standing army. To the Founders, a standing army posed a threat of both tyranny and ruinous military adventurism. To counter this threat, the Constitution meticulously allocated military power between the federal army and the state militias. The purpose of the Second Amendment was to protect this allocation. Part II is analytic. My goal is to clarify the debate by identifying the argument at the core of the revisionists\u27 attack on the courts. First, in light of the history recounted in Part I, I hope to discredit a libertarian version of the revisionist approach, which sees activities like hunting and recreational shooting as interests protected by the Second Amendment. This position, while it may be widespread among lay Second Amendment enthusiasts, cannot be supported by the historical record. An alternate version of the revisionist argument, however, is more plausible. According to this theory, the Amendment protects the rights of individual Americans to arm themselves so they can serve as the “unorganized militia” of the several states. This “Unorganized Militia Approach” is a fair reading of the Founders\u27 intent; were we living in the early Nineteenth Century, it would provide the basis for any judicial implementation of the Second Amendment. In Part III, I seek to explain this repudiation as a consequence of the Fourteenth Amendment. The Civil War destroyed the Founders\u27 carefully wrought design; by initiating a federal draft, Lincoln replaced the Founders\u27 decentralized military structure with a national army. I will argue that the Fourteenth Amendment made Lincoln\u27s innovations a permanent part of the constitutional framework. One of that Amendment\u27s many ramifications was to legitimize a federal military draft, and concomitantly undermine the role of the states\u27 militia. With the militia rendered constitutionally obsolete, the purpose of the Second Amendment evaporated. In Part IV, I consider a new strand of the revisionist argument, which understands the impact of the Fourteenth Amendment to be precisely the opposite of what I am suggesting. This argument, made most persuasively by Akhil Amar, claims that the Fourteenth Amendment was intended to reaffirm and expand--“incorporate,” in modern parlance--the Bill of Rights. As the Second Amendment is part of the Bill, Amar argues, we should understand the Fourteenth Amendment to have strengthened, not weakened, its protections. I will argue, however, that Amar\u27s argument is seriously flawed because it ignores the particular historical circumstances in which contemporary incorporation doctrine developed. For Amar, incorporation should be understood as simply putting into effect the intentions of the framers of the Fourteenth Amendment. In fact, the Supreme Court formulated the incorporation doctrine only after the New Deal rendered unusable earlier interpretations of the Fourteenth Amendment; accordingly, a full understanding of the Fourteenth Amendment\u27s effect on the Bill of Rights--including the Second Amendment--must explain why the incorporation doctrine emerged only after the New Deal, and not before. I then provide a brief start toward such an explanation by contrasting the rebirth of the First Amendment after the New Deal with the dormancy of the Second. I conclude by suggesting the need for further work by courts and scholars to give the Second Amendment meaning in the context of the post-New Deal Constitution

Eras of the First Amendment

Part I will begin the story with the Founders\u27 understanding of the structural role of the First Amendment. In this understanding, the First Amendment served as a bulwark of state independence. Along with the rest of the Bill of Rights, the First Amendment had as its primary purpose maintenance of the federal system--or, more precisely, protection of the states against federal government overreaching. The Founders\u27 plan left the individual states entirely free to regulate speech, while strictly prohibiting the federal government from displacing the states\u27 various speech regimes. When the Civil War dramatically reshaped the federal-state relationship, the structural purpose of the Bill of Rights changed in response. Part II will describe this change. No longer were the Constitution\u27s protections of individual rights aimed exclusively at the national government. Indeed, over the seventy years following the Civil War, imposing restrictions on state governments became a central constitutional concern. But this concern found expression not through the Free Speech Clause of the First Amendment but through the property-focused guarantees of the Fifth and Fourteenth Amendments. Free speech was relegated to the periphery. This period, from the Civil War to the New Deal, was the nadir of the First Amendment. Part III will show how the New Deal brought free speech to the center of constitutional jurisprudence. This shift, too, was the product of a broad-gauged reconfiguration. The legitimation of activist government rendered previous constitutional understandings unworkable. No longer could liberty be guaranteed--as in the Federalist era--by protecting the independent authority of the states, or--as in the Civil War era--by preserving common law rights to property and contract. Instead, the Supreme Court has interpreted the constitutional guarantee of liberty as protecting the processes of democracy and electoral accountability. In the New Deal era, the Court has extended to political affairs the libertarianism it earlier applied to economic affairs: The First Amendment prohibits the government from rearranging private distributions of political resources. The impetus for this interpretation comes from the highly undemocratic and unaccountable nature of the administrative state. Because the New Deal era government is so powerful, the liberty principle embedded in the First Amendment requires the Court to ensure the state\u27s subjection to popular control. Having identified the three eras of free speech jurisprudence in Parts I, II, and III, Part IV will elaborate the scholarly method and the premises about constitutional theory that underlie this recounting. This method is holistic, structural, and historical. It understands each constitutional component in relation to other provisions; it focuses on the concrete institutional endowments effected by constitutional lawmakers rather than the general principles those lawmakers arguably endorsed; and it is sensitive to the development of constitutional structure over time. Part IV will conclude by examining the normative implications of the history of the First Amendment. Contemporary free speech doctrine suffers from many of the same defects that eventually forced the abandonment of earlier eras\u27 liberty jurisprudence. Understanding the origins of the modern orthodoxy will suggest directions for future change

How Should Congress Respond to McDonnell?

Discussion of question of whether McDonnell was essentially right or wrong. Should Congress act to change the McDonnell rule? Should the Supreme Court reconsider it? What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution

Panelist (Symposium: The Second Amendment)

To understand the Second Amendment and what the Founders who wrote it were trying to do, you have to understand the conceptual framework that they were working in. And that conceptual framework is based on two concepts regarding the military: the concept of the army and the concept of the militia. The Second Amendment is about how the military power of the United States should be organized. It grew out of one of the most pretentious issues faced by the Philadelphia Convention, which was: what military power should they give this new Federal Government? They\u27re sitting down to write the Constitution, and one of the three or four most important, most contentious issues they face is, should the Federal Government have an army? Under the Articles of Confederation, there was no Federal Army. If the congress wanted to field armed forces under the Articles, they had to call on the states for requisitions. That was a model that some delegates to the Philadelphia Convention wanted to keep. They didn\u27t want a Federal Army. Why? It starts with, as I say, the concept of army and militia. To the founders, these were two very different things

A Two-Tiered Theory of Consolidation and Separation of Powers

This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power. Part I begins with a discussion of the Federalist theory of separation of powers. For the Federalists, two conditions ensured an effective separation. First, governmental branches must be institutionally independent; each must be free from control by the others. Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action. Until the New Deal, the Supreme Court incorporated this theory into its jurisprudence through the nondelegation doctrine, which limited the discretionary authority of administrative agencies. The Court displaced this limitation in the late 1930\u27s and early 1940\u27s with a series of decisions approving massive delegations of authority to the executive branch. Contemporary separation of powers analysts dispute the meaning of the Court\u27s repudiation of the nondelegation doctrine. Separation of powers “purists” insist on maintaining strict boundaries among the legislative, executive, and judicial functions, while “partialists” emphasize the balance of power among institutionally independent branches. Part II presents an alternative, two-tiered theory. According to this theory, the nondelegation doctrine\u27s demise was accompanied by the birth of a “consolidation principle” requiring concentration of the government\u27s operational power within administrative agencies. Such consolidation must be sufficient to permit activist regulation. At the same time, the traditional principle of separation of powers remains vital, though limited in scope. The “separation principle” provides the theory\u27s second tier: The ultimate power of control over agencies must be divided among the original three branches. Part III explains the Burger Supreme Court\u27s two landmark separation of powers decisions as motivated by this two-tiered approach. The Court\u27s rejection of the legislative veto illustrates the consolidation principle. The veto was an attempt by Congress to interfere with the ability of administrative agencies to pursue interventionist agenda. In contrast, the Court demonstrated the continued force of the separation principle by invalidating the Gramm-Rudman-Hollings budget balancing law. Gramm-Rudman-Hollings represented a congressional attempt to exclude the President from participation in ultimate control over the agencies. Part IV, applying the two-tiered framework elaborated in earlier Parts to an issue of current importance, argues that portions of the Competition in Contracting Act4 (CICA) are unconstitutional. Like the legislative veto, CICA disrupts the consolidation of operational power within administrative agencies. Finally, Part V offers some normative justifications for a two-tiered theory

The Sound of Silence: The Supreme Court and the Second Amendment - A Response to Professor Kopel

Until now, the revisionists have based their argument entirely on claims about the intentions of those who framed and ratified the Second Amendment. Revisionists have heretofore conceded that the courts have rejected their approach; indeed, the basic structure of the revisionist argument has been: The Founders intended an individual right to firearm possession; the courts (abetted by the academy) have all but nullified the Amendment by treating it as a mere safeguard for militia; the courts should recognize their error and strike down gun control laws. With his latest contribution, David Kopel seeks to open a second front in the conflict over the Second Amendment by arguing that the Supreme Court has in fact been quite sympathetic to the individual rights approach advocated by the revisionists. To this end, he has collected all 35 of the Supreme Court cases mentioning the Second Amendment or the “right to keep and bear arms.” Reviewing these cases is certainly instructive, but I do not agree with Professor Kopel about their meaning - at least not with the strong version of his argument. Kopel\u27s main claim is that it is “well-settled” that the Second Amendment confers “an individual right.” Supreme Court case law simply cannot support that claim. Rather, the few well-known cases, chiefly Miller, that deal with the Second Amendment at some length tell us that the Second Amendment is not an “individual right” (as Professor Kopel is using that term), and the rest of the cases canvassed by Professor Kopel tell us nothing at all about the Second Amendment. I will suggest some of those implications below, but first I want to explain my disagreement with Professor Kopel. I dispute his conclusion about the case law for two reasons. First, his presentation of the question to be addressed - does the Second Amendment confer an “individual” right or a “collective” right? - is confused. Second, I challenge his treatment of the individual cases mentioning the Second Amendment

Meta-analysis derived atopic dermatitis (MADAD) transcriptome defines a robust AD signature highlighting the involvement of atherosclerosis and lipid metabolism pathways

BACKGROUND: Atopic dermatitis (AD) is a common inflammatory skin disease with limited treatment options. Several microarray experiments have been conducted on lesional/LS and non-lesional/NL AD skin to develop a genomic disease phenotype. Although these experiments have shed light on disease pathology, inter-study comparisons reveal large differences in resulting sets of differentially expressed genes (DEGs), limiting the utility of direct comparisons across studies. METHODS: We carried out a meta-analysis combining 4 published AD datasets to define a robust disease profile, termed meta-analysis derived AD (MADAD) transcriptome. RESULTS: This transcriptome enriches key AD pathways more than the individual studies, and associates AD with novel pathways, such as atherosclerosis signaling (IL-37, selectin E/SELE). We identified wide lipid abnormalities and, for the first time in vivo, correlated Th2 immune activation with downregulation of key epidermal lipids (FA2H, FAR2, ELOVL3), emphasizing the role of cytokines on the barrier disruption in AD. Key AD “classifier genes” discriminate lesional from nonlesional skin, and may evaluate therapeutic responses. CONCLUSIONS: Our meta-analysis provides novel and powerful insights into AD disease pathology, and reinforces the concept of AD as a systemic disease. ELECTRONIC SUPPLEMENTARY MATERIAL: The online version of this article (doi:10.1186/s12920-015-0133-x) contains supplementary material, which is available to authorized users