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I've always been a fan of the "2nd Amendment is a State RIght" argument.
One of the better explorations of this argument was done by Glenn Reynolds and Don Kates.
In light of comments made by the States of Texas and Montana re secession - comments like these are amusing.
I wonder if this is what Chicago is really shooting for? Their own Navy?
One of the better explorations of this argument was done by Glenn Reynolds and Don Kates.
In light of comments made by the States of Texas and Montana re secession - comments like these are amusing.
Moreover, under the states' right view, the Second Amendment guarantees a vastly greater range of weaponry (to state-authorized civilians or to the states themselves) than is implied by the individual right view. Exponents of the latter view have been at some pains to show that the Amendment extends to small arms only. Warships, tanks, artillery, missiles, atomic bombs, and so forth are excluded from its guarantee for several reasons, including the Amendment's text,[56] the history of the common law (p.1757)right to arms,[57] and the logic of the individual right position.[58]
Of course, none of the limitations implicit in the individual right view applies to the states' right view because the common law imposed no limitations on the kinds of arms the government might possess. If the incongruity of the Amendment describing a state as "bearing" arms can be ignored, which the states' right view necessarily does, a state is obviously no more incapable of "bearing" cannon than any other kind of arms. Moreover, if the purpose of the Second Amendment is to guarantee the existence of state military forces that can serve as "a military counterpoint to the regular standing army,"[59] the arms it guarantees the states logically could include even the most destructive implements of modern war. However unsettling these results may be, they inevitably result from the Antifederalist critique of the original Constitution upon which proponents of the states' right view rely.
Of course, none of the limitations implicit in the individual right view applies to the states' right view because the common law imposed no limitations on the kinds of arms the government might possess. If the incongruity of the Amendment describing a state as "bearing" arms can be ignored, which the states' right view necessarily does, a state is obviously no more incapable of "bearing" cannon than any other kind of arms. Moreover, if the purpose of the Second Amendment is to guarantee the existence of state military forces that can serve as "a military counterpoint to the regular standing army,"[59] the arms it guarantees the states logically could include even the most destructive implements of modern war. However unsettling these results may be, they inevitably result from the Antifederalist critique of the original Constitution upon which proponents of the states' right view rely.
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