Second Amendment

1. Second Amendment • Commas & clauses • A well regulated Militia being necessary to the security of a free State the right of the people to keep and bear Arms shall not be infringed. • A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. • A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. • A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. [official]

2. Bill of Rights • 3 & 4: Security of property from the state • Protection from the quartering soldiers • Protection from unreasonable search & seizure • 5: Can’t be indicted for a capital or ‘infamous’ crime w/o indictment from grand jury • “Infamous” interpreted as felony • 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. • 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. • Bill of Rights originally applied only to federal gov’t, but 14th amendment (1868) made it & all constitutional rights applicable at all levels of gov’t • Due Process clause, Equal Protection clause

3. Levels of Scrutiny • Rational basis review • Is the law a reasonable means to a legitimate end of government? • Reasonable, not wise or useful • Used in reference to 5th, 14th (equal protection clause) amendments • Ex: Singling out repeat offenders for special punishment

4. Levels of Scrutiny • Intermediate scrutiny • Must show that law under challenge furthers an important gov’t interest and materially furthers that interest • Sex-bases classifications • Sexual orientation? • Unclear, applies in some states • Content-neutral restrictions on free speech

5. Levels of Scrutiny • Strict scrutiny • When challenged law infringes on fundamental rights (due process, Bill of Rights, etc.) or singles out “suspect classification” • The law must serve “compelling” gov’t interest, be narrowly tailored to achieve its end, and use least coercive means to accomplish it • Content-based speech restrictions • Suspect classification • Group must have history of discrimination against it, membership in it must be immediately apparent, be a politically-vulnerable minority, & its characteristics largely unrelated to gov’t aims • Race, nationality. Sexual orientation in some states • Only applies to de jure discrimination, not de facto • De jure intent to discriminate: so obvious as to be otherwise inexplicable, with historical background to suggest intent, and legal and administrative records to demonstrate it • Wisconsin v. Yoder (1972)

6. An Outsider Looking In:Alexis de Tocqueville “A worldwide revolution toward democracy is in full swing amongst us” (Political Science 565)

7. Alexis de Tocqueville • 1805-1859 • Minor French Aristocrat • Parents almost executed under Robespierre • Liberal • Active in French politics, retires after Louis Napoleon Bonaparte’s 1851 coup • Democracy in America & The Old Regime and the Revolution

8. Democracy in America • 1835 & 1840 • July Monarchy (July Revolution of 1830 – Revolution of 1848) • Tocqueville and Gustave de Beaumont sent by French gov’t to study American prisons, but just a pretext for a study of America • Tocqueville & Beaumont travel US for nine months, starting May 1831

9. Key Points • Developmental analysis • Equality the definitive characteristic of American life • Reconciliation of religion & liberty • Relationship between law & morality • Self-interest rightly understood

10. America in 1831 • Jacksonian democracy • Expand suffrage to all white men (removed property restrictions for voting) • Militant egalitarianism • Militant racism • Suspicion of institutions of government and business • Expansionism • Indian Relocation Act of 1830 • Industrial Revolution • Interchangeable parts, urbanization, national roads, early railroads • Slavery • Nation, States and sections • Jackson a proponent of single national identity and of states’ rights • North and South

11. Purpose of the Book • “The first of the duties currently imposed upon the rulers of our society is to educate democracy, to reawaken, if possible, its beliefs, to purify its morals, to control its actions, gradually to substitute statecraft for its inexperience and awareness of its true interests for its blind instincts, to adapt its government to times and places, and to mold it according to its circumstances and people.” (16)

12. The French 19th Century • 1789: French Revolution: The First Republic • 1804-1815 : Emperor Napoleon • 1815 : Restoration of the Monarchy. • 1830-1848 : Revolution: July Monarchy. • 1848 : Revolution: Second Republic • 1852-1870 : Second Empire under Napoleon III • 1879: Third Republic

13. Method • “The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs, and ideas which regulate the conduct of nations; whatever it does not produce, it modifies.” (58)

14. Method • The entire man, so to speak, comes full formed in the wrappings of his cradle. (37) • Developmental approach • Origins and early experiences definitive of people and societies • America is the only society in the Christian world that is observable from its beginning

15. The Tide of History • Toward equality • In 1100, power is determined entirely by birth • But the Church can provide a vehicle for social mobility to people of all classes, and the growth of Church power introduces paths to power for commoners • Rising power of money & trade can bring power to all, regardless of birth • Towns & commerce have been used by kings and aristocrats to undercut one another, but towns and traders have grown in power all the while (12-13) • Technology, art, etc.

16. The Tide of History • “The whole of the book in front of the reader has been written under the pressure of a kind of religious terror exercised upon the soul of the author by the sight of this irresistible revolution which has progressed over so many centuries, surmounting all obstacles, and which is still advancing today amid the ruins it has caused.” (15) • The will of God • Teleological endpoint of Western civilization is equality

17. Problems in French Society • “But as we have left behind the social conditions of our ancestors and have cast behind us their institutions, ideas, and customs in one confused heap, what have we put in their place?” (19) • Majesty of royalty gone, but the laws have not inherited it, people fear and despise authority • Powerful aristocrats who could oppose despotic gov’t are gone, but nothing is in their place • People of all classes have become selfish and materialistic

18. Problems in French Society • We have abandoned whatever advatages the old regime possessed without grasping those gains offered by the present state of things; we have destroyed an aristocratic society and, as we complacently stand in the midst of the ruins of the old building, we seem willing to stand there forever. (20)

19. Problems in French Society • In France, the representatives of Christianity and those of liberty and equality have, for historical reasons, become enemies, when they should be one and the same. (21) • It is not simply, therefore, to satisfy a curiosity, albeit justified, that I have examined America; my aim has been to discover lessons from which we may profit. (23) • In this way, the book is about France as much as it is America

20. Common Features of American Colonists, derived from England • Language • Political heritage of rights and liberty, gov’t by consent • Religious conflicts result in serious character, value of intellect & dispute, purified morals • Unsettled, immigrant character of new colonies means no one is predisposed to accept the superiority of anyone else (39-40)

21. Colonists of the South • Seekers of gold, adventurers without substance or character • Later, farmers & craftsmen, w/better moral, but more or less identical with English lower classes • No noble views, no spiritual thought presided over the creation of these new settlements (41) • Entirely mercantile • Slavery • “Brings dishonor to work; it introduces idleness into society together with ignorance and pride, poverty, and indulgence. It weakens the powers of the mind and dampens human effort. The influence of slavery, together with the English character, explains the customs and social conditions of the South.”

22. New England Colonists • Political ideas have permeated all of the United States, and now the world • “A beacon lit upon mountain tops” • Middle class • Not adventurers, immigrate with families, good morals • Came to N. America not in search of wealth, “Their object was the triumph of an idea.” (42-43)

23. “Pilgrims” • Puritanism “almost as much a political theory as a religious doctrine.” (46) • Equality before God • Emphasis on mutually agreed upon covenant for governance • Laws passed by consent of the community • Along with penal laws “redolent of the narrow bigotry of sect and religious fanaticism” exist political laws “which, although enacted two hundred years ago, seem still to anticipate the spirit of freedom of our own times.” (52)

24. Aspects of Puritan Gov’t • All in service of religious aims • Voting on gov’t, laws, taxes • Personal responsibility of those in power • Individual freedom • Trial by jury • Universal (male) militia service • Public education • Protection of the poor • Record keeping & administration (51-54)

25. Religion, Liberty & Equality • “The founders of New England were both sectarian fanatics & noble innovators.” (55) • Believing religious law eternal, they saw political laws as infinitely flexible • Reconciling the spirit of liberty and spirit of religion • The town was organized before the nation, and at the Revolution the New England concept of equality came to organize the new nation • “We hold these truths to be self-evident, that all men are created equal...”

26. Law & Society in America • I am astonished that commentators old and new have not attributed to the laws of inheritance a greater influence on the progress of human affairs. (60) • Primogeniture keeps wealth & property unified • A modern corporation has a similar function • Equal inheritance divides it, diffusing wealth and dividing it among heirs • For T., this is a major cause for the then relative equality of wealth in the United States as compared to Europe

27. Equality of Education • Almost everyone has access to primary education, almost no one has access to higher education • Very few born rich enough not to work, have no leisure for study, never develop a taste for it • Interest primarily in practical knowledge, rather than abstract academic forms of knowledge (65-66)

28. Politics and Equality • “Equality ends up by infiltrating the world of politics as it does everywhere else.” (66-67) • Two kinds of political equality: • All have equal rights • No one has any • Americans have chosen the former • Women? Slaves? • “The people reign in the American political world like God over the universe. It is the cause and aim of all things, everything comes from them and everything is absorbed in them.” (71) • Popular Sovereignty

29. Bottom-Up Gov’t • In America, township  state  federal gov’t (71) • Man it is that makes monarchies and founds republics; the township seems a direct gift from the hand of God. But if the town has existed as long as man has, its freedom is uncommon and easily broken • The US is remarkable for the amount of power allowed municipal & local gov’ts

30. “The strength of free nations resides in the township. Tow institutions are to freedom what primary schools are to knowledge: they bring it within people’s reach and give men the enjoyment and habit of using it for peaceful ends. Without town institutions a nation can establish a free government but has not the spirit of freedom itself.” (73) • Town gov’t trains individuals in self-gov’t, ownership of and active participation in it • Democracy as a way of being • NE towns best at this • This also makes Americans unbearably touchy about criticism from foreigners: it is a criticism of their own creation (277)

31. Centralization • Two kinds (103): • Governmental: national issues (national law, war, foreign relations) • For T., this is very important to accomplish. The nation may speak with one voice. (104) • Administrative: Zoning, construction, local issues • For T, this is bad. It diminishes the sense that individuals govern themselves, reducing civic pride. (104) • America has highly centralized its government, but has a decentralized administration (103)

32. A central gov’t may administer more efficiently & wisely, but it detracts from a nation’s democratic spirit (107) • “Men must walk in freedom, responsible for their own behavior.” (108) • The advantages Americans get from decentralized administration are political, while in France “Subjects still exist but citizens are no more. (110, 111)

33. Force of Ideas • “You will never come across true exercise of power among men, except by the free agreement of their wills; only patriotism or religion can carry, over a long period, the whole body of citizens toward the same goal.” (111) • Decentralization of administration results in heightened patriotism, and forms a check against a potentially tyrannical central gov’t • The habit of freedom (114)