Gun Control & RKBA
In reply to the discussion: 2nd Am history: Until 1959, every law review article concluded it didn't guarantee an individ right [View all]jimmy the one
(2,720 posts)sarisataka: the {2nd} Amendment does not grant a right but recognizes the prior existence. True for all rights.
The bill of rights both limits congress as well as protects (not grants) individual rights; in the 2ndA case it limited congressional infringement, as well as protected, when written, for white males, the 'individual' right to belong to a well regulated militia, as was their civic duty per 2ndA & militia act of 1792.
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Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.
sarisataka: Note the wording, adult male inhabitants to possess arms. Not the militia, not to keep the lock under government control but to possess.
Along with ignoring 'cooperate in defence', the flaw in your reasoning is the same as joyce malcolm's:
Amici Curiae (21 british scholars) have an interest in the (2008 scalia led supreme) Court having a well-informed and accurate understanding of the Anglo-American tradition to have arms from which {2ndA} originated:
The US Supreme Court correctly found that the English right to have arms was an expression of the same right that has long been understood to be the predecessor to our Second Amendment.
II. THE ALLOWANCE OF A RIGHT TO HAVE ARMS SET FORTH IN THE 1689 DECLARATION OF RIGHTS WAS THE PRECURSOR TO THE SECOND AMENDMENT.
contrary to discredited scholarship upon which Heller [decision] relied, the right to have arms embodied in the English Declaration of Rights did not intend to protect an individuals right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term self-defense).
Rather, it referred to a right to possess arms in defense of the realm.The have arms provision in the [1689] English Declaration of Rights .. provided two protections to the individual. First, the right to have arms gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to have arms was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of self-preservation and resistance should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.
Where the Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading individual to mean private, defence to mean defense against harm by private individuals acting for private purposes and equating self-preservation with the modern usage of the term self-defense.
In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolms work is flawed on this point.The origins of [2ndA] in the English right to have arms demonstrate that this right of self-preservation/self-defense gives individuals the right to collectively defend their public interests against organized assault or tyranny, not only in case of a foreign invasion, but, in 1689, in the event of a Catholic plot to overthrow English Protestants. Moreover, the right of self-preservation was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise.
...The term self-defence was used in the same sense: principled rebellion of the people against tyranny. Contrary to Malcolms view, the have arms provision was the result of a political dispute over whether ultimate control over the militia the fighting force composed of qualified subjects of the realm resided with the sovereign, or in Parliament. Immediately prior to the 1662 Militia Act, Parliament, not the sovereign, held control over militia.
Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law.
I. THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION
https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf