Legal Eagles Assemble - Need 2A cases/journals

[Will938]

I have to write a 15 or so page paper concerning the 2nd amendment as an individual right; I have a counterpart in the class arguing it as a collective right.

What I need is cases and journals supporting our side. Normally I'd see something like the Heller case and think "sweet, I can squeeze three pages out just talking about the significance." But I want this to be very solid. Does

Higher the case the better, anyone have cases for me to look at or journals to read?

edit: I can also dabble with writing from the founders.

[seamusTX]

Let me get this straight: You want us to help you with your homework?

No problem : http://www.usdoj.gov/olc/secondamendment2.pdf

- Jim

[SC1903A3]

You might want to get "The Second Amendment Primer" as it gets into the writtings of the people that wrote the constution. It's well worth the read.

http://www.amazon.com/Second-Amendment- ... B0006QSTH4

[Nazrat]

Use http://www.findlaw.com. It is a decent search engine for many legal issues. I haven't used it for 2A issues.

[Kalrog]

You can find some supporting information (for both sides so that you can refute what you want to refute) at the scotusblog wiki for DC v Heller. I know you want other cases as well, so look at the briefs mentioned and go to the sources cited in them as well.

http://www.scotuswiki.com/index.php?title=DC_v._Heller

[ttorion]

There's some good stuff here:

http://armsandthelaw.com/

[Will938]

Let me get this straight: You want us to help you with your homework?

No problem : http://www.usdoj.gov/olc/secondamendment2.pdf

- Jim

I knew you couldn't resist, mwuhahaha. Great source, definately will put a few quotes from it into my paper.

[Will938]

You might want to get "The Second Amendment Primer" as it gets into the writtings of the people that wrote the constution. It's well worth the read.

http://www.amazon.com/Second-Amendment- ... B0006QSTH4

I'll order it just for the sake of interest, but it won't get here in time for this paper

[SC1903A3]

Too bad you don't live in the DFW area, I'd let you borrow my copy.

[Will938]

Thanks to everyone for their help, I've come up with an outline of sorts, because I find it always helps you burn through papers when you prepare in this fashion. If there are any points I've left out please let me know...I'm sure I've missed a few.


- sentence structure guy (english prof, the "well educated electorate" guy), find source
- explain why the wording militia doesn’t matter

- explain federal code defining militia anyhow

- national guard created long after constitution, federally funded/housed/equipped/ordered (sometimes), do states lose NG status if they don’t meet certain standards?

- Explain other amendments using words “people� or “state�, did framers suddenly forget English?

- Find framer’s documents to support their beliefs in the individual right
- Individuals were expected to keep their own weapons


- Need for individual right
- Protection from tyrannical government
- Protection from foreign invasion
- Self defense
- Hunting
- Cite cases of foreign invasion or natural disasters which created lawlessness or threats to our country
- explain current situation, but liken it to past situations, remind that we don’t know what the future holds no matter how comfortable we are right now

- tell attorney general’s thoughts on the matter

- go over district court decisions
- Emerson v US
- go over Heller v DC case, explain significance

- go over Miller case

What else do I need in there? What sounds like a bad idea?

[ELB]

I keep some references at hand that you may find useful:


As a general pointer, go to the following websites and use the search function or prowl around and you should come up with some sources;

1. Professor Glenn Reynolds, UTenn
http://instapundit.com

2. Clayton Cramer
http://www.claytoncramer.com/

3. Dave Kopel
Lots of stuff here
http://www.davekopel.com/

4. Dave Hardy, Attorney
Has law reveiw articles, among other info
http://www.armsandthelaw.com/

More generally:

1. A list, with links, to various scholars on the 2A
http://www.hoboes.com/Politics/Firearms/scholarship/

2. Academics for the Second Amendment: http://academicssecondamendment.blogspot.com/
Not sure how much these guys actually have online yet, they just started a blog.

Some specific articles:

1. A Critical Guide to the Second Amendment
Abstract:

This Article surveys case law, history, and scholarship on the Second Amendment. Examining both "individual right" and "collective right" theorists, it synthesizes a so-called "Standard Model" of Second Amendment interpretation, and briefly addresses questions of what weapons might be protected under a more expansive treatment of the Second Amendment than exists today.

http://papers.ssrn.com/sol3/papers.cfm? ... _id=960788

2. Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment by Robert Churchill, Historian
http://www.historycooperative.org/journ ... chill.html

3. The Peculiar Story of United States vs. Miller , BRIAN L. FRYE
NYU Journal of Law & Liberty, Vol. 2, 2007

This article provides a comprehensive history and interpretation of United States vs. Miller, the only Supreme Court case construing the Second Amendment. It presents evidence Miller was a test case designed by the government to test the constitutionality of federal gun control. It shows the holding in Miller is narrower than generally assumed. It argues Miller adopts neither the individual nor the collective right theory of the Second Amendment. It suggests the Supreme Court's pragmatic, deferential approach in Miller remains appropriate.

4. Telling Miller's Tale
GLENN HARLAN REYNOLDS
University of Tennessee College of Law
BRANNON P. DENNING
Cumberland School of Law
65 Law & Contemp. Probs. 113 (Spring 2002)

The case of United States v. Miller, 307 U.S. 174 (1939), is often cited in gun-control arguments and arguments over the meaning of the Second Amendment. In this Article, we take a close look at Miller, and the arguments made before the Supreme Court. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendment—the holding ascribed to it by most federal
courts since 1939.

http://papers.ssrn.com/sol3/papers.cfm? ... _id=960812

5. Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:
Professor Eugene Volokh
http://volokh.com/archives/archive_2007 ... 1196212101

6. A Liberal Case for Gun Rights Sways Judiciary
Adam Liptak, New York Times

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

http://www.nytimes.com/2007/05/06/us/06 ... ref=slogin

7. Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions
Prof. Eugene Volokh, UCLA Law School
http://www.law.ucla.edu/volokh/2amteach/sources.htm

8. The Racist Roots of Gun Control
This somewhat indirectly addresses individual rights, in that it shows among the ways that various minorities had their individual rights suppressed was through gun control laws.
http://www.firearmsandliberty.com/cramer.racism.html

9. The Klan's Favorite Law
Gun control in the postwar South
David B. Kopel
Similarly to above, this shows that suppression of individual right to bear arms had a racist beginning
http://www.reason.com/news/printer/32884.html

10. THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES: WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
David B. Kopel [FNa1]
Saint Louis University Public Law Review, 1999
http://www.davekopel.com/2A/LawRev/35finalpartone.htm

Also, you should look up the Dredd Scott decision. This was a pre-civil war Supreme Court decision that supported slavery. However, it treated the 2A as an individual right, with the (rather offensive) argument that if blacks were really equal citizens, then they would have the right to have guns, something the racists on the court were not prepared to allow.

11. The Second Amendment and States' Rights: A Thought Experiment
GLENN HARLAN REYNOLDS
University of Tennessee College of Law
DONALD KATES
36 Wm. & Mary L. Rev. 1737-1768 (1995)

Proponents of the so-called "collective right" model of the Second Amendment often assert that the right to bear arms exists only on the part of state militias, and not as any sort of individual right. Without addressing the merits of that claim, this Article examines the consequences of taking such a view seriously as a matter of constitutional law, and suggests that those consequences might be quite drastic.

http://papers.ssrn.com/sol3/papers.cfm? ... _id=960810


This should get you started. Now go forth and crush your opponent!

elb

[srothstein]

One area you might look at are the militias that are not part of the National Guard. Many states have their own militias, which in Texas is the Texas State Guard.

But there is also another very common use of the citizenry as a militia that was not military and required individual arms. That is the use of citizens as a sheriff's posse to chase after criminals. This is still embodied in the Code of Criminal Procedure where it authorizes a peace officer to request help from citizens and makes it an offense for a citizen to not provide the assistance. It is in article 2.14 and 2.15 of the CCP. And to help tie this in, you might want to look at the history of the Texas Rangers, which started as a militia to protect against Comanche raiders.

I am not sure if it helps or hurts, but you might also look at the militias that have been trying to protect the border. This is clearly part of the militia concept, while having nothing to do with the National guard. It could hurt in an argument because most of the anti-Second Amendment people I know are also pro-illegal immigration. Maybe you could figure a way to raise the issue with a disclaimer that the right or wrong of the border issue is not relevant to the need to be armed to assist in crime control?

[Will938]

One area you might look at are the militias that are not part of the National Guard. Many states have their own militias, which in Texas is the Texas State Guard.

But there is also another very common use of the citizenry as a militia that was not military and required individual arms. That is the use of citizens as a sheriff's posse to chase after criminals. This is still embodied in the Code of Criminal Procedure where it authorizes a peace officer to request help from citizens and makes it an offense for a citizen to not provide the assistance. It is in article 2.14 and 2.15 of the CCP. And to help tie this in, you might want to look at the history of the Texas Rangers, which started as a militia to protect against Comanche raiders.

I am not sure if it helps or hurts, but you might also look at the militias that have been trying to protect the border. This is clearly part of the militia concept, while having nothing to do with the National guard. It could hurt in an argument because most of the anti-Second Amendment people I know are also pro-illegal immigration. Maybe you could figure a way to raise the issue with a disclaimer that the right or wrong of the border issue is not relevant to the need to be armed to assist in crime control?

"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.

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" (307 U.S. 174).

This quotation from the Miller case supports the idea that there is a difference between the federally backed troops like the national guard and state militias as you pointed out such as the Texas State Guard.

It also speaks of Citizens being expected to bring their own arms. So it covers two birds with one stone.

I'll also bring up the point of police summoning aid. I need to find a news article or something with an example though, like citizens being called to help in manhunts. I've heard a story here I think of someone receiving a call to get their rifle and participate in a manhunt. Anyone have a citation laying around?

edit:...is it necessary/how do you cite state law properly

[Will938]

The syllabus states, "The paper must be as long as it needs to be in order to complete the task you have set for yourself. Recommended length is 12-15 pages." I'm still expanding the outline and I'm up to almost 8 pages. The longest paper I've ever written was 35 pages, I think I could top 40 without even trying to stretch it. If this doesn't haunt her dreams/force her to change her syllabus I'll consider it a failure.

[lrb111]

I'll also bring up the point of police summoning aid. I need to find a news article or something with an example though, like citizens being called to help in manhunts. I've heard a story here I think of someone receiving a call to get their rifle and participate in a manhunt. Anyone have a citation laying around?

Posses are still called out regularly for missing persons, and outright manhunts of dangerous criminals. That's all over the state.
Sheriff's Reserve Officers are unpaid volunteers doing things like serving papers. They are in uniform, and carry openly. As well as any long guns.

Just on hearsay, I have heard of CHLs in ride-along programs with police that are allowed to carry and, are welcomed by some forces.