CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, March 3, 2010

"2d Amendment extension likely"

Lyle Denniston reviews yesterday's much anticipated argument in McDonald v. City of Chicago at ScotusBlog.

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I am not bucking for a law school professorship as Scalia suggested about anyone who raised the privileges and immunities clause theory of incorporating an unenumerated right. Those who are interested in the argument might consider the history of the end to the civil war.

On April 9, 1865, in parlay with General Robert E. Lee, General Grant not only pardoned all of the confederate rebel soldiers then and there before him, he granted the those officers the right to keep their sidearms and take them on their respective journies home. Their private horses were included in this offer.

In this day and age granting a pardon (no pun intended), granting the right to bear arms co-extensively, and permitting the the pardoned person to travel unmolested through the District of Columbia (as one example) would be unthinkable. The DC cops would be on these Johnnie Rebs in a New York minute and the New York cops just a shy faster.

But Grant was recognizing a right to bear arms. He could not be thinking of the Second Amdt right in conjunciton with the duty of a person to serve in the militia when the militia had just been disbanded in the same stroke of the pen. The peace was conditioned on the dismemberment of the respective state militias and confederate army. Grant was later President. The 14th Amdt was conceived, drafted, and ratified in the context of these times and decisions. The gun right is a Ninth Amdt right-- unenumerated yet recognized and sanctified by General Grant and later President Grant. When Scalia and these originalists drift off and talk about the intent of the Framers they usually run on about Sir Walter Raleigh or other such events. The Framers of the 14th Amdt had some accounts to be reconned with and this Appomatix Courthouse scene is one which needs to be considered. And this is not just my original thinking.

Posted by: Mpb | Mar 5, 2010 3:52:09 AM

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