There is procedural impropriety when the parties are deprived of their opportunity to be heard or when there is bias or when no consultation is conducted properly as required by the Code of Practice on Written Consultations whenever there is a change in policy. Moreover, there is also procedural impropriety when the tribunal fails to give reasons upon which the decision rests so that the losing or winning party would know he has lost or won.
Another instance of procedural impropriety is based on the doctrine of legitimate expectation. This occurs when the one who having the authority to make the decision, by his clear conduct or words promised a benefit to a recipient who relied on it. Before the enactment of the Human Rights Act in , the courts make statutory interpretations of domestic laws in the light of the rights and duties contained in Conventions in cases of contradictions and inconsistencies.
For instance, in the case of Taylor v Co-operative Retail Services, where the court ruled that Taylor cannot be granted compensation for his dismissal on account of his failure to join a union considering that under the domestic laws, specifically Acts of and such dismissal is allowed albeit in contravention of the European Convention of Human Rights.
Thus, the dismissed employee may recover compensation from the ECHR. The Human Rights Act implements and gives more force to the provisions of the Convention. The enactment and passage of the Human Rights Act paved the way for those injured by the unlawful acts of public authorities to raise them before the domestic courts for judicial review.
Thus, judicial review entailed more circumspect examination of the substance of the case. Section 6 1 of the Human Rights Act declares as unlawful any act of a public official which is inconsistent with the Convention right. In effect this allows judicial review and rulings from the court that specific provisions of domestic laws are incompatible with the Convention.
It is believed that the impact generated by this new development may change the results of the traditional grounds for judicial review.
This proportionality test is deemed fulfilled if the three elements are present, namely 1 that the aim or purpose must be important; 2 the measures must have a rational connection with the objective, therefore it must be fair, rational and logical; and 3 the means employed must be proportional to the legitimate purpose. The Human Rights Act also authorises the court to inquire into facts and examine whether the decisions employ the least degree of restrictions.
By reason of the Human Rights Act implementation, a perception has arisen that the sphere of judicial review has been enlarged thereby leading to judicial activism. In effect, the judiciary in its exercise of judicial review is re-writing legislation which Parliament has enacted to overturn its effects. Moreover, there has been a marked increase in the number of cases for judicial review which mostly involve asylum and immigration cases. Accessed September 14, We will write a custom essay sample on Judicial review specifically for you.
Leave your email and we will send you an example after 24 hours Indeed, one commentator concluded that it is very much akin to the "standing army" against which the Founding Fathers railed. As Standard Model scholars point out, this makes any argument that the Second Amendment merely protects the National Guard untenable.
Discussion of the right to keep and bear arms seems to lead inevitably to questions of whether the existence of such a right necessitates the right to own, for instance, a howitzer or a nuclear weapon. Writers adhering to the Standard Model, which stresses fidelity to the purposes and history of the Second Amendment, have arrived at fairly convincing answers to such questions by drawing on those sources.
The right to keep and bear arms is no more absolute than, say, the right to free speech. Just as the demand "your money or your life" is not protected by the First Amendment, so the right to arms is not without limits. But the right to arms is no more undone by this fact than freedom of speech is undone by the fact that that right is not absolute either. Mainstream scholars of the Second Amendment draw limits from the text and from the purpose of the provision.
Presumably individuals if wealthy and eccentric enough could "keep" such weapons, but they could not "bear" them. Thus, weapons such as machine guns, howitzers, or nuclear weapons would not be p. The "recreational and sporting uses" often cited by both sides in the contemporary gun control debate, on the other hand, are not relevant.
They are cited by those who favor gun control in the hopes of not arousing the fears of hunters and target shooters, and by those who oppose gun control in the hopes of mobilizing those same groups.
But they have nothing to do directly with the purpose of maintaining an armed citizenry. Recreation and sport, to the extent they are protected at all, are covered only penumbrally; the Second Amendment is not about sport or recreation. Despite the claims of some prominent gun-lobby spokespersons, and of a vast number of radio talk show callers, the Standard Model interpretation of the Second Amendment does not guarantee a right to keep and bear arms for everyone.
The right to arms always extended beyond the core membership of the militia, encompassing those like women, seamen, clergymen, and those beyond the upper age for militia service who could not be called out for militia duty.
But Standard Model scholars tend to stress that in. One implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous i. Thus, felons, children, and the insane were excluded from the right to arms precisely as and for the same reasons they were excluded from the franchise--though some women for example who lacked the right to vote nonetheless possessed the right to arms.
Lopez ,  does not violate the Second Amendment, at least as applied to schoolchildren. Nor does the right extend to felons or the insane.
After all, the "well regulated militia" of which every citizen was presumed a part included the necessity of showing up occasionally in person to prove that one possessed the necessary weapons and knew how to use them.
Outside that context the only carrying of firearms which the amendment appears to protect is such transportation as is implicit in the concept of a right to possess-- e. In this light, whatever the asserted benefits of laws that allow citizens to carry weapons freely, the Standard Model stresses that there is no Second Amendment right to do so--though there may, of course, be Fourteenth Amendment rights not to be discriminated against in the granting of any such licenses a state may choose to permit.
Another argument frequently heard is that the Second Amendment is militarily obsolete. The argument is that lightly-armed civilians simply cannot defend themselves against a modern army, and that as a result an armed citizenry would not serve as a remedy for, or even a deterrent against, a tyrannical government.
It is hard to know what to say about this argument. First, of course, it is something of an act of faith to believe that any constitutional right will ultimately protect against a tyrannical government. As the interned American citizens of Japanese descent learned, the Bill of Rights provided them with little protection when it was needed.
Certainly some tyrannies have arisen in nations where press freedom existed--Weimar Germany, for example. Yet we do not generally require proof of efficacy where other Constitutional rights are concerned, so it seems a bit unfair to demand it solely in the case of the Second Amendment.
At any rate, the argument that irregulars with light arms are ineffective against modern armies--though no doubt pleasing to the self-esteem of military professionals--is not especially compelling based on the facts. As I write this article, the Red Army, which many analysts once thought capable of cutting through the armies of Western Europe like a knife through cheese, is finding itself sorely tried by the irregulars of the self-proclaimed Chechen Republic.
Though most observers predict eventual victory for the Russian armed forces, some believe that the fighting will bring down the Yeltsin government, and pretty much everyone agrees that this will make the Russian authorities less likely to crack down in the same fashion again: It thus seems rather believable that an armed citizenry could frustrate tyranny, or at least make would-be tyrants weigh the high costs against the dubious benefits of, say, a military coup.
The final popular argument against a Second Amendment right to keep and bear arms is that, regardless of what the right is supposed to accomplish, it is simply too expensive. That is, with all of the violence in America, the cost of having guns readily available exceeds any benefit that an armed citizenry might provide. My usual response to such arguments is that as a professor of constitutional law I am as sublimely indifferent to the question of whether the availability of guns leads to crime as I am to the question of whether pornography causes sexual offenses.
In either case, the Constitution has spoken, and that is enough. Such consequential concerns may be relevant to, say, the question of whether to repeal the First or Second Amendments, but they should certainly have no role in how we interpret or apply them.
I thus leave argument about these topics to criminologists and the like. At any rate, Standard Model theorists stress that if we are going to let worries about costs and benefits affect our interpretation of constitutional rights, we ought to be consistent. If one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?
As Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights were always or even most of the time costless to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are.
The very fact that there are often significant costs--criminals going free, oppressed groups having to hear viciously racist speech, and so on--helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments.
Most often, one finds them embracing versions of textual, historical, or doctrinal argument that dismiss as almost crass and vulgar any insistence that times might have changed and made too "expensive" the continued adherence to a given view Yet one finds that the tables are strikingly turned when the Second Amendment comes into play. Here it is "conservatives" who argue in effect that social costs are irrelevant and "liberals" who argue for a notion of the "living constitution" and "changed circumstances" that would have the practical consequence of removing any real bite from the Second Amendment.
But the Constitution, and particularly the Bill of Rights, is not a buffet line from which we can take those items that look appetizing while leaving behind those that do not appeal.
It is a package deal. Thus, arguments that disfavored rights should be balanced away while favored rights should be retained should be recognized for what they are. On the other hand, arguments that all of the Bill of Rights should be jettisoned when inconvenient, though intellectually honest, should also be rejected, in my opinion. The Bill of Rights does not exist to make it easy for us to do what we want. There is one argument against giving present day meaning to the Second Amendment that cannot be dealt with quite so easily.
In short, Williams agrees that the Framers intended the militia to be universal, and that the National Guard is not the "well regulated militia" that the Second Amendment envisions. The guard, however, is a select body, only a fraction of the population The universal militia, by contrast, was the people under another name; it could not turn against the people because it was the people. As the National Guard is not universal, it cannot serve as a substitute.
First, gun owners are no more "universal" than the National Guard--that is, although some people in every demographic category own guns, gun owners are disproportionately white, middle-class men, especially from the South. If we have an armed revolution, it will be in the interests of these citizens, not of the population as a whole. Second, Williams argues that the ideal of the militia was founded on notions of public service and widespread virtue that are not present today.
In the absence of these "conditions precedent," the basic purpose of the Second Amendment cannot be fulfilled. I am sorry to say that there is something to this argument. One way of understanding it is to look at the other Constitutional institution most like the militia: Although the ideal and function of the jury are based on the kinds of notions of universal representation and service that also underlie the militia, no one familiar with the actual operation of the jury system thinks that it is either universal or representative.
In a society that finds it hard to get citizens to show up for jury duty, it is perhaps too much to expect that they will show up for militia service. Yet we still take p. And efforts to address this problem tend to revolve around ways of making citizens show up for jury duty, rather than abolishing the jury. There seems no good reason to treat militia service differently. The same is true for universality of gun ownership.
If gun ownership is essential to give the Second Amendment meaning, then simply require everyone to own a gun and to go through the necessary training to use it responsibly. It did so by passing the Militia Act of As this action of the first Congress illustrates, such an approach is far more consistent with the Second Amendment than simply ignoring it would be. Furthermore, universal militia service might even help to reestablish the kind of civic virtue that all of us wish were present today.
Please note that neither I, nor any Standard Model scholar of whom I am aware, argues that individual gun ownership should be made mandatory. However, if the complaint is that less-than-universal gun ownership renders the Second Amendment meaningless, then this answer does tend to present itself rather forcefully.
And while universal armament might be hard to accomplish, it is unlikely to be any harder than universal dis armament, based on the experience of gun control efforts over the last several decades. But unlike the arguments of either the rabid pro- or antigun lobbies, the Standard Model draws its conclusions from the text, history, and structure of the Constitution in a principled way. These principles do not make Standard Model conclusions right as a matter of social policy--we remain free to decide, as we have in the past, that the Constitution is sufficiently wrong on an issue to be worth amending  --but they do make Standard Model conclusions formidable as a matter of constitutional law.
In short, this alternative model provides that the Second Amendment protects not a right of individuals, but only a right of the States. Thus, the right protected is simply the right of states to have a "well regulated militia. The most obvious flaw of this theory is the failure of its own proponents to take it seriously. Madison saw the militia as the military instrument of state government, not simply as a collection of unorganized, privately armed citizens.
Thus, it seems fair to say, the scope of any rights enjoyed by the states under the Second Amendment would be determined by the goal of preserving an independent military force not under direct federal control.
But the existence of such a right on the part of states would be a very big deal, going far beyond the abolition of any direct protection for individuals under the Second Amendment. If states possess a constitutional right, as against the federal government, to maintain militias or "state armies" as former Chief Justice Burger calls them then the Second Amendment works a pro tanto repeal of many of the restrictions on state military power contained in Article I, Section 10 of the Constitution.
Furthermore, if states have a right to maintain their own militias, independent of federal control, then they obviously must have the right to equip those militias as they see fit. Otherwise, the "right" would be meaningless, as the federal government could, by regulating weaponry, render the counterweight ineffectual. Since many states would balk at spending the money to buy guns for their citizens, quite a few might do what Congress did in One might try to avoid this problem by simply declaring that the National Guard is the "militia" that the states have a right to maintain, but this argument has two problems.
First, for reasons set out above,  it is pretty obviously not true. Second, if the National Guard is the militia, then it is unconstitutional under the Second Amendment because it is not sufficiently independent. After all, an institution that is to serve as a counterweight to the federal standing army can hardly fulfill that function if it is as thoroughly dominated by the federal government as the present-day National Guard is.
Whatever the National Guard is, it is not a "state p. Under the classical view of the Constitution, authority is delegated by the people to two kinds of governments, state and federal. State governments are not creations of the federal government, nor is the federal government the creature of the states.
Both exercise authority delegated to them by the true sovereigns, the people. But there is another view. In this view, the state governments represent the "real" governments of the people.
The federal government exists as a somewhat mistrusted agent of the states, with states retaining the power to protect their people and themselves by checking the actions of the federal government where necessary to prevent overreaching.
If applied across the board, this view would have rather dramatic consequences, going far beyond those outlined above. Board of Education  --and, for that matter, of the Civil War.
Thus, unless we are to be entirely incoherent, we must seriously consider rethinking constitutional history all the way back to Brown , and indeed to McCulloch v. The view of states as the primary constituents of our Constitution, though it has an ancient if not always honorable history, is not one that enjoys great esteem or adherence today given the past circumstances of its invocation.
Nor is it particularly consistent with either the language or the history of the Constitution. It is no accident that most of those writers are not practicing academics, but politicians and issue-oriented activists.
Realizing that it takes a theory to kill a theory, they came up with one of their own. But "creation science" does not work from the bottom up, synthesizing research into a coherent approach. It works from the top down, starting with its conclusions and looking for evidence that supports them whether or not it forms a consistent whole. It is simply a slogan. As Stephen Halbrook puts it:. In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms.
If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between and states such a thesis.
In the face of an unprecedented wave of immigration, largely made up of those whom Americans of Northern European descent found strange and threatening, Framing-era faith in an armed citizenry and in the sovereignty of the people failed. New York State passed the Sullivan Law to license handguns while the New York Tribune complained about pistols found "chiefly in the pockets of ignorant and quarrelsome immigrants of law-breaking propensities" and condemned "the practice of going armed Even before the Sullivan Law, the New York City police had been canceling pistol permits in the Italian sections of the city In the first three years of the Sullivan Law, 70 percent of those arrested had Italian surnames.
Nor was New York the only state to follow this approach; in fact, it was widespread wherever "out" groups frightened the establishment. In the West, it was Chinese and Japanese immigrants  who frightened the establishment into enacting restrictive gun laws; in the South it was p.
I know something of the history of this legislation. The original Act of was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in the turpentine and lumber camps.
The same condition existed when the Act was amended in and the Act was passed for the purpose of disarming negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security.
The statute was never intended to he applied to the white population and in practice has never been so applied. Thus, such actions were justified by the invocation of a new theory. Instead of placing the right to keep and bear arms in individuals--which necessarily would include members of groups whom many in the establishment did not trust--the argument was that the Second Amendment placed the right to arms in the very state governments that were then busy disarming "undesirable" groups.
Of course, nowadays many believe that the entire populace, not simply some racially- or nationally-defined segment of it, is untrustworthy where weapons are concerned. This may or may not be true. However, such a p. If that view is to receive legal effect, it must be in spite of the Second Amendment, not because of it.
Although there is not much caselaw regarding the right to keep and bear arms, there is some. What is fascinating is that it has been embraced by both sides in the gun control debate. The Supreme Court has not often considered the Second Amendment. In several nineteenth-century cases, the Court refused to enforce the right to keep and bear arms against states because of its then-applicable doctrine, as announced in Barron v.
In United States v. Cruikshank is also sometimes cited for the proposition that the right to arms is a preexisting natural right that is somehow not really part of the Constitution at all, based on the following language:.
Neither is it in any manner dependent on that instrument for its existence. The second amendment guarantees p. This is one of the amendments that has no other effect than to restrict the powers of the national government. It is hard to make too much of this, for two reasons.
First, the Court had just finished saying the same thing about the First Amendment:. The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress.
The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. Thus, relying on Cruikshank for the proposition that the Second Amendment applies only against Congress requires either an acceptance that the First Amendment is also inapplicable against the states, or a convincing explanation of why our understanding of the First Amendment should be updated, while our treatment of the Second Amendment should remain in the pre-incorporation era.
Nor is it possible to do much with the argument that the right to keep and bear arms "is not a right granted by the Constitution," nor is "in any manner dependent on that instrument for its existence. Quite the contrary, even though the right that Douglas was describing was the product of penumbral reasoning, and was not specifically protected by the Bill of Rights, which the right to keep and bear arms, of course, is.
That seems rather drastic, and certainly counterintuitive. Similar arguments can be made with regard to the later cases of Presser v. Illinois  and Miller v. At the very least, there should be some principled reason why the doctrine of incorporation should not apply to the Second Amendment, when it is routinely applied to other rights that these cases also held not applicable against the states.
These cases, after all, are not exactly spring chickens. All predate Plessy v. Ferguson  and in fact could be viewed as part of the build-up to Plessy , since the end result was disarmed blacks who could look for protection only to the very state governments that were turning against and disenfranchising them. Still, even accepting the argument that the Second Amendment is applicable only against the federal government, we are left with the question of what it covers and who can invoke it.
Unfortunately, there is really only one Supreme Court case offering much guidance on that subject. That case is United States v. Miller ,  a case that offers only a modicum of help. In brief, Miller involved a challenge to the National Firearms Act of , which sharply limited private ownership of such gangster-associated weapons as sawed-off shotguns and submachineguns. The Supreme Court reversed, holding that evidentiary hearings were required.
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. In the absence of any evidence tending to show that possession or use of "a shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. State , 2 Humphreys Tenn. As a result, the Court remanded the case to the district court for further fact-finding proceedings. But there are some important lessons to be learned nonetheless. Instead, the court would have had to ask only one question: But the case was not dismissed for lack of standing.
Since the Court took Mr. Beyond that, it is risky to draw any additional conclusions: While Miller is not very clear, the opinion does draw its language from the important Tennessee case of Aymette v. State ,  which held that the kinds of weapons protected are those that are "part of the ordinary military equipment.
I claim two grounds beyond geography for doing so. Aymette and its successor Andrews v. Article I, Section 26 of the Tennessee Constitution provides: In Aymette , the defendant--like those Rambo wannabes who are responsible for the term "gun nut" today--claimed that the Tennessee provision. In answering the question of whether this was what the right to keep and bear arms protected, the Court said:.
But to keep and bear arms for what? The object, then, for which the right of keeping and bearing arms is secured is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.
They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin The right to keep and bear them is not, therefore, secured by the constitution.
From this language, it is easy to see why the Miller Court quoted Aymette on the question of how a sawed-off shotgun should be treated. It is also important to note that the very same passage supports an individual, rather than a state, right: The other major Tennessee case, Andrews v. State  addresses some other questions of current interest. Andrews involved defendants who were charged with violation of a statute forbidding "any person to publicly or privately carry a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver.
It was the second question that raised real issues. The Attorney General of Tennessee argued that the right to keep and bear arms was a mere "political right" that existed for the benefit of the state and, hence, could be regulated at pleasure by the state. In short, the Tennessee Supreme Court examined many of the same historical sources relied upon by Standard Model scholars, and arrived at the same conclusions. It distinguished between the "keeping" of arms, which involved private possession, and the "bearing" of arms, which had to do with militia service.
Bearing arms for the common defense may well be held to be a political right, or for the protection and maintenance of such rights, intended to be guaranteed; but the right to keep them, with all that is implied fairly as an incident to this right, is a private individual right, guaranteed to the citizen, not the soldier. The court concluded that citizens have the right to keep military-type weapons,  and to engage in the necessary practice, repair, and transportation of such weapons, even in the absence of any specific militia connection.
From these cases, then, we can learn the following: In light of both the Federal and the Tennessee cases, then, it seems clear that the Standard Model enjoys substantial support. This should come as no great surprise, given that the Standard Model represents an effort to deal faithfully with a rather large body of generally consistent historical and textual material.
There is, however, one major ground for criticism left. That criticism is my own, and has to do with the ultimate purpose behind the right to keep and bear arms: The Standard Model stresses the role of an armed populace as a protection against a tyrannical government. And, as Professors Cottrol and Diamond point out, on a purely practical level it may make more sense for individuals to arm p.
We have, in the twentieth century, seen the rise of monstrous states capable of deprivations of liberty far in excess of anything that the English Whigs who authored the Declaration of Rights of or their American successors in could have envisioned That, in the light of the history of the twentieth century, those we rely on for serious constitutional and political commentary have failed to examine the issues of whether the state should have a monopoly of force and whether an armed population might still play an important role in deterring governmental excesses bespeaks a dangerous intellectual cowardice, a self-imposed limit on political and constitutional discourse that causes us largely to ignore one of the most critical questions of our time.
I have no argument with this point. And if SS liquidation units, or their modern-day American equivalent, ever show up at our doors we will not need much in the way of constitutional theory to tell us what to do. But one can grant that prevention of genocide and mass murder--or at least rendering it vastly more difficult and costly for their perpetrators--is a good reason for a right to keep and bear arms without believing that it is the only reason.
Nor does the Standard Model suggest that prevention of such horrors is the primary reason for the Second Amendment.
After all, compared with the monster regimes of our century, the British government against which our predecessors revolted was rather nice, really. Nonetheless, the Framers found ample reason for revolt. Yet Standard Model scholars have paid almost no attention to the question of when such a revolt would be justified.
If we have the right to keep and bear arms in no small part so that, in the last resort, we can rise up and overthrow a tyrannical government, then one important aspect of the right would seem to be some basis p.
Hitler, after all, was elected fair and square in the beginning, yet pretty much everyone would agree that he was the archetypical dictator against whom revolt would be justified. This is a question that is of more than just academic importance.
Already, there are news reports that large numbers of Americans--as many as , according to some estimates--have organized themselves into militia companies whose stated purpose is to resist a tyrannical government. These groups are inspired by a mixture of anger over recent gun-control laws and law enforcement activities, and exaggerated fears that the federal government intends to abandon the Constitution and establish a "new world order" government. Many of these individuals are very familiar with the Second Amendment, and with Standard Model scholarship, but most are sadly lacking in understanding about what the Framers would have considered a tyrannical government.
As I have said elsewhere, revolting against taxation without representation is not the same as revolting against taxation, period. One is that some citizens will think it is time to revolt when it is not, thus exposing the nation to enormous turmoil, loss of life, and economic damage where it is not justified--and perhaps creating a backlash against the right to keep and bear arms. The other perhaps less likely in light of that streak of anarchy that seems part of our American culture is that many citizens will not think that it is time to revolt when it is.
Assuming that a would be Hitler or his probably very different-looking American equivalent were then gathering power, the consequences of such a failure could be even worse than the consequences of an unjustified rebellion.
And, worst of all, the former could precede the latter, given the way in which such things often work. Unsuccessful revolts are often used as an excuse for the kind of "temporary" repression that breeds dictatorship. At the moment, the risk of a misguided revolt still seems fairly remote, but that is the time to take appropriate steps.
Standard Model scholars need to develop this aspect of their theories. Theories, even theories of constitutional law professors, have consequences. Indeed, the growth of the militia movement is itself an unintended consequence of antigun arguments that the Second Amendment only protects the right to belong to a militia--for that movement has its roots in individuals who organized their militias in response to just this argument.
Now is not the place for me to address such issues at any more length; this "brief" survey of the field is already too long. But I would suggest that a place to start should be with the original organic document of our nation, the Declaration of Independence. The principles laid out there, and its registry of complaints against King George III, represent a good starting point for discussion of what constitutes a legitimate revolution, as opposed to a mere "rebellion" or "insurrection.
Our modern society, despite its ills, does not suffer from a lack of political participation; arguably, it suffers from too much. And it is one that they can change, without a revolution, if that is what they really want.
As readers will recognize by now, I believe that the mainstream view that I have called the Standard Model has the better of the debate. But that is only half true. Standard Model scholars dominate the academic literature on the Second Amendment almost completely.
Instead, I am afraid that it has to do with a central failing of American academia: In some fields, this is inevitable, simply because no one else is interested. But that cannot be the case where the subject is one as controversial and contested as the right to keep and bear arms. Instead, I think that it has to do with the reluctance of legal academics to "go public" with their views.
Scientist Stephen Jay Gould writes in the foreword to one of his "pop" books on evolutionary theory that "[i]n France, they call this genre vulgarisation --but the implications are entirely positive In America, for reasons that I do not understand and that are truly perverse , such writing for non-scientists lies immured in deprecations. In the field of science, widespread popular ignorance is a very bad thing, given the many ways in which scientific knowledge is important to our society.
But in the field of constitutional law, widespread popular ignorance is even worse, because Americans are not simply affected by constitutional law, as even the most unscientific are affected by science. Americans have responsibilities under the Constitution, and they can hardly be expected to discharge them if they remain ignorant on the subject.
Or, worse yet, they are likely to succumb to the same kind of promises of painless redemption that are mainstays of the diet and fitness industries.
In both cases, the outcome is likely to be bad. Legal academics cannot force Americans to learn, but we can at least do our best to see that they have the opportunity, by taking our knowledge public. If the Standard Model scholars had done more of this over the past few years, the public debate would be very different. Perhaps this issue of the Tennessee Law Review will circulate widely enough to start the process of educating the public at large about the interesting work being done in this field.
If it does, we will all be better off. I completed this Article several months before the Oklahoma City bombing and the subsequent focusing of attention on the Second Amendment debate and p. As has been shown above, the National Guard is pretty clearly not the "militia" to which the Framers referred.
As a result, militia groups argue that they are the militia that the Constitution describes. But they are wrong, too. Although the militia was a body that was, in a way, external to the state in the sense of being an institution of the people, the expectation was that the state, not private groups, would provide the foundation upon which the structure of the militia would be erected.
As David Williams puts it, "Republicans did not intend to leave the universality of the militia to the chance decision of every citizen to arm herself. The state was supposed to erect the necessary scaffolding on which the militia could build itself, to muster the militia, and oblige every citizen to own a gun.
This is difficult for many modern Americans, with more European-influenced ideas of the state, to appreciate. But perhaps the best analogy would be to the institution of the jury. The jury was intended not just as a protection for individuals, but far more importantly as a check against overweening state power, since it could always refuse to convict in cases of political prosecution.
The jury was intended to reflect the community, and to function in many ways independent of state direction.
But the state provides the structure within which the jury operates; no one can get together with eleven friends and simply declare that the resulting group makes up a constitutional jury. Similarly, although First Amendment associational rights may provide some protection for individuals who band together and call themselves a "militia," they do not thereby become the well regulated militia that the Second Amendment describes.
Of course, as discussed above, neither can a select government-controlled body constitute that militia, any more than such a body could constitute a jury. The same is true of p. Rather, it must be representative of--in fact, it must be --the community. Militia groups are even farther off base when they make arguments based on the right of revolt. There is little question that the Framers believed that citizens had the right to revolt against a tyrannical government; after all, they had done so themselves.
And, as I have mentioned earlier, Framing-era state constitutions explicitly enshrine such a right as well. There are two reasons for this. The first is that the primary way in which the militia was intended to serve as a bulwark against oppression was passive. Since, at the time of the framing, the primary means of executing the law or quelling insurrection was by calling out the militia, a simple refusal on the part of the militia to perform its duties would be enough to frustrate tyranny pretty thoroughly.
Obviously, this does not apply to private groups without state sanction, since they would not be called out as groups to enforce the law anyway.
A good short description follows:. This right of resistance is the second general result of entrusting force to the militia.
It is the only purpose of the Second Amendment explicitly mentioned during its discussion in Congress Republicans were aware of the danger implicit in vouchsafing this right of resistance in the citizenry and sensitive to the charge that they were inciting violence. They developed a number of limits on the right: It must be a product of the "body" of the people, i. An uprising that failed to meet these criteria was considered an illegitimate rebellion, rather than an act of true republican resistance.
Thus, there can be no claim--despite what some militia theorists, and some militia critics, maintain--that the Second Amendment guarantees a right for any individual to declare war against the federal government whenever he or she thinks the government is unjust.
It should also be obvious that those talking armed revolt today do not meet any part of the test set out above. There are two important points to be taken from the preceding. First, constitutional theory matters , and not just to professors of constitutional law.
The proper understanding of the Second Amendment, as embodied in its history and p. The Second Amendment creates an individual right to arms; the "militia" language neither expands nor contracts that right. Unfortunately, some gun-control proponents have promulgated the notion that the Second Amendment protects only a militia; many pro-gun activists have responded by forming militias in the hopes that doing so would somehow expand their constitutional rights.
This, coupled with misunderstanding of the purpose of the Second Amendment on the part of both groups, has produced a situation that may still prove dangerous.
And that is the second lesson: Be careful what you advocate in terms of constitutional principles, because people may listen to you. My final observation has less to do with constitutional law than with good manners as applied to constitutional law. It has been my experience, as a constitutional scholar who has written on Second Amendment issues, that I have gotten a much greater response from members of the non-academic community regarding those topics than when I have written on, say, the Commerce Clause.
Many of them have been far more knowledgeable about the Second Amendment, its history, its caselaw, and its academic treatment than are most professors of constitutional law. Nonetheless, in popular media discussions of the subject, and in casual conversation among academics and journalists, such individuals are routinely written off quite unfairly as either nuts or dupes of the National Rifle Association.
I will not belabor this point, as it has been addressed admirably by Doug Laycock in his Vicious Stereotypes in Polite Society. In fact, such stereotyping and marginalization themselves promote paranoia and conspiracy theories.
After all, many may believe that a system that ignores or trivializes their views--even when those views are in fact well-founded--is unlikely to have their best interests at heart, or even to be truly democratic. I fear that the bad habit of trivializing and disdaining popular opinion regarding the Constitution--particularly when that opinion comes disproportionately from rural working-class white males--represents an unfortunate legacy of the Civil Rights struggle.
The academic and government elites were right then, and their more populist critics were wrong. But being right once is not the same as being right always. But it remains true nonetheless. And when, as so many commentators today argue, the elites seem to have captured a disproportionate share of political and economic power,  treating the Constitution, too, as a preserve of the elite is likely to produce great resentment, and to produce a dangerous loss of legitimacy.
I fear that it has done both. Interestingly, the adoption of Standard Model jurisprudence by the Supreme Court might do a great deal to ease the distrust and polarization that I have mentioned, and even to make sensible gun controls easier.
So far, the barriers to gun control have been political, not constitutional. Those opposing gun control have been motivated in no small part by the fear that each measure represents a step toward confiscation. If adopted, the Standard Model approach would go a long way toward easing those fears, by protecting an individual right to arms.
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