It's not simple, as with many legal matters.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D03-15/C:18-1478:J:Flaum:aut:T:fnOp:N:2309276:S:0
ARGUED SEPTEMBER 7, 2018 — DECIDED MARCH 15, 2019
Re: Virtuous, from page 49:
C.
While scholars have not identified eighteenth or
nineteenth century laws depriving felons of the right to bear
arms, history does show that felons could be disqualified
from exercising certain rights—like the rights to vote and
serve on juries—because these rights belonged only to
virtuous citizens. See THOMAS M. COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS 29 (1st ed. 1868) (explaining
that certain classes of people were “almost universally
excluded” from the franchise for “want of capacity or of moral
fitness”); Saul Cornell, “Don’t Know Much About History” The
Current Crisis in Second Amendment Scholarship, 29 N. KY. L.
REV. 657, 679 (2002) (identifying the “right to sit on juries” as
“limited to those members of the polity who were deemed
capable of exercising it in a virtuous manner”). Some
maintain that the right to bear arms is similarly limited by a
virtue requirement. See, e.g., Don. B. Kates Jr., The Second
Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS., Winter
1986, at 143, 146 (“[T]he right to arms does not preclude laws
disarming the unvirtuous citizens (i.e., criminals) or those
who, like children or the mentally unbalanced, are deemed
incapable of virtue.”). On this view, the legislature can disarm
felons because of their poor character, without regard to
whether they are dangerous. See Medina, 913 F.3d at 159
(endorsing the view that the Second Amendment excludes
not only the dangerous, but also the “unvirtuous”) The
majority is sympathetic to this view. See Maj. Op. at 16.
The problem with this argument is that virtue exclusions
are associated with civic rights—individual rights that
“require[] citizens to act in a collective manner for distinctly
public purposes.” See Saul Cornell, A New Paradigm for the
Second Amendment, 22 LAW & HIST. REV. 161, 165 (2004). For
example, the right to vote is held by individuals, but they do
not exercise it solely for their own sake; rather, they cast votes
as part of the collective enterprise of self-governance.
Similarly, individuals do not serve on juries for their own
sake, but as part of the collective enterprise of administering
justice. Some scholars have characterized the right to keep
and bear arms as a civic right, because it was “one exercised
by citizens, not individuals …, who act together in a collective
manner, for a distinctly public purpose: participation in a well
regulated militia.” See Cornell & DeDino, 73 FORDHAM L. REV.
at 491 (“[T]he text [of the Second Amendment] fits a civic
rights model better than either the individual or collective
rights paradigms.”). Saul Cornell explains:
Perhaps the most accurate way to describe the
dominant understanding of the right to bear arms in the Founding era is as a civic right. Such
a right was not something that all persons could
claim, but was limited to those members of the
polity who were deemed capable of exercising
it in a virtuous manner. Freedom of religion,
freedom of the press, trial by jury were genuinely rights belonging to individuals and
were treated differently than were civic rights
such as militia service, or the right to sit on
juries.
Cornell, 29 N. KY. L. REV. at 679 (footnotes omitted). And as a
right that was exercised for the benefit of the community (like
voting and jury service), rather than for the benefit of the
individual (like free speech or free exercise), it belonged only
to virtuous citizens.
Heller, however, expressly rejects the argument that the
Second Amendment protects a purely civic right.'>>>
Likely too complex and nuanced for many.
= new reply since forum marked as read
