VI. TWENTY-FIRST CENTURY POSTSCRIPT

On June 26, 2008, a citation inserted into Justice Antonin Scalia’s opinion for the Court in District of Columbia v. Heller inadvertently confirmed the twenty-first century relevance of Spooner’s views, particularly as they relate to the incorporation of the Second Amendment.116 Justice Scalia devoted much of his opinion to an extensive survey of sources that served to support the conclusion that a rich body of historical sources pointed to an individualized (rather than collective) reading of that Amendment’s protection of the “right of the people to keep and bear Arms.” Spooner’s The Unconstitutionality of Slavery was one of the antislavery sources that Scalia cited. He directed our attention to one of the passages of the work that interpreted this provision of the Bill of Rights as “enabl[ing] ‘personal defence.’”117 In the two parts of his treatise, Spooner made two main references to the Second Amendment. Just like the other references to provisions of the Bill of Rights, they were brief, only meant to support his interpretations of other sections of the Constitution’s text. He first related the Second Amendment to the clause of Article I, Section 8 that empowers Congress to organize and arm a militia that could, amongst other things, be used to “suppress insurrections.” When combined with his reasoning that slavery was unconstitutional, the meaning of this provision led Spooner to conclude that it clearly gave the federal government, and only the federal government, the power to “enroll and arm” this militia. The body of men from whom it could draw its enrollees included all of “those whom the States call slaves”—the men that the Constitution compelled the federal government to view as free. No other conclusion could be consistent with the dictates of natural justice. To this end, the Second Amendment was instructive because it similarly spoke of the natural right afforded every individual—“the natural right of all men ‘to keep and bear arms’ for their personal defence.”118 Spooner’s second main The Unconstitutionality of Slavery reference to this right came when he used the Second Amendment as an example of what might happen “[i]f the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right.”119 The Second Amendment implicitly sanctioned the individual use of arms. Consequently, were one inclined to interpret it without regard for natural justice, then one could plausibly make the case that it permitted such usage “not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression— for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied.”120 It remains to be seen whether Spooner’s works make any future appearances in U.S. Supreme Court opinions (Heller was the first).121 Perhaps his theories will be (re)visited by at least one member of the Court when that institution addresses the question of whether the Second Amendment applies to the actions of state and local governments when it decides McDonald v. City of Chicago. 122 If a Justice were inclined to pursue this avenue of research, then he or she would do well to pay attention to the content of the intended part three of The Unconstitutionality of Slavery and to Spooner’s correspondence.123 Together, these works leave us with no doubt that Spooner believed that the right to “personal defence” is a right that every individual possesses, and is a right that no government, federal or state, may abridge.124

Abstract

I. INTRODUCTION

II. SPOONER VERSUS PHILLIPS: AN OVERVIEW OF THEIR “GREAT DEBATE”

III. WENDELL PHILLIPS: GIVE ME HISTORY, NOT LIBERTY!

IV. LYSANDER SPOONER: GIVE ME LIBERTY . . . “[W]ITH [I]RRESISTIBLE [C]LEARNESS”

V. THE LIBERTARIAN PROMISE OF AN UNFINISHED TREATISE

VI. TWENTY-FIRST CENTURY POSTSCRIPT

VII. CONCLUSIONS

116 128 S. Ct. 2783, 2807 (2008).

117 Id. (quoting SPOONER, supra note 2, at 98). Scalia mistakenly cited page 116.

118 SPOONER, supra note 2, at 98 (emphasis added).

119 Id. at 66.

120 Id.

121 Some of his works have been cited in other lower federal court opinions. See, e.g., U.S. Postal Serv. v. Brennan, 574 F.2d 712, 717 n.11 (2d Cir. 1978) (referring to the arguments made by Spooner in The Unconstitutionality of the Laws of Congress Prohibiting Private Mails (1844)); Lindsey v. United States, 133 F.2d 368, 376 (D.C. Cir. 1942) (citing SPOONER, supra note 88).

122 NRA v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted sub nom. McDonald v. City of Chicago, 130 S. Ct. 48 (2009).

123 Spooner also discussed the Second Amendment in SPOONER, supra note 88, at 208, and in LYSANDER SPOONER, ADDRESS OF THE FREE CONSTITUTIONALISTS TO THE PEOPLE OF THE UNITED STATES (1860), reprinted in THE COLLECTED WORKS OF LYSANDERSPOONER, VOL. IV: ANTI-SLAVERY WRITINGS 25 (Charles Shively ed., M & S Press 1971). As Todd Zywicki notes with regard to the first of these works (but his comment is equally applicable to the other), its radical content means that “if the Supreme Court ever cites to ‘Trial By Jury’ that’ll really be interesting!” Posting of Todd Zywicki to The Volokh Conspiracy, http://volokh.com/2008/06/30/supreme-court-cites-lysanderspooner/ (July 1, 2008, 12:27 EST) (comment in response to posting of Randy Barnett).

124 For an additional overview of Spooner’s writings on the Second Amendment, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1436–40 (1998).

 

 

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