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jimmy the one

(2,720 posts)
27. scalia erred in heller -1
Mon Mar 14, 2022, 08:57 AM
Mar 2022

Scalia in heller: See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm);.. in the Declaration of Right: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” (1689). This right has long been understood to be the predecessor to our Second Amendment.. It was clearly an individual right, having nothing whatever to do with service in a militia.

Scalia above cited Joyce Malcolm and the english 1689 bill of rights, claiming she & it provided for an individual rkba. A British consortium of 21 english scholars disagreed, so much so that scalia omitted malcolm's above, in the subsequent related 2011 mcdonald ruling:

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.”.


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 individual’s 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..


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 Malcolm’s 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.


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Justice Scalia ruled (in heller), in order to distance 'well regulated' from conferring any restrictions upon the militia or firearms: ".. the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.

Yet the articles of confederation separated 'well regulated' from 'disciplined', which counters Scalia's contention:

Articles of Confederation (1777-87), VI: .. but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered...

The articles contend well regulated and disciplined are two separate ideas, contradicting Scalia's definition.
If 'well regulated' implied nothing more than the imposition of proper discipline and training as scalia ruled, why do the articles of confederation separate 'well regulated' and 'disciplined'?
Because 'well regulated' had a different connotation than 'disciplined'.

Webster's 1828 dictionary: REGULATE 1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.
3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.

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NEVER Going To Stop Guns In America SoCalDavidS Jan 2022 #1
Strange..............43 posts and I can see only 15 of them. oneshooter Mar 2022 #43
Huh? SoCalDavidS Mar 2022 #44
17 posts have been dropped. oneshooter Oct 2022 #45
Have added some folks to ignore? n/t discntnt_irny_srcsm Oct 2022 #46
I do not put people on ignore. oneshooter Oct 2022 #47
If you have an add blocker... discntnt_irny_srcsm Oct 2022 #48
Had Democrats not pushed for gun control so strongly over the last few decades, Dial H For Hero Jan 2022 #2
Am I the only one melm00se Jan 2022 #3
I see them all. discntnt_irny_srcsm Jan 2022 #4
Are they too small, or are you getting broken links? n/t krispos42 Jan 2022 #5
It might be because the picture links.. krispos42 Jan 2022 #6
broken links melm00se Jan 2022 #7
Deafening silence. krispos42 Jan 2022 #8
The antigun activists on this site haven't the faintest interest in debating facts. Dial H For Hero Jan 2022 #9
Yeah, well. I had a beaut of a response for you, and I chickened out. Paladin Jan 2022 #10
Intriguing reply indeed krispos42 Jan 2022 #11
shall issue ccw was not wanted in the first place jimmy the one Feb 2022 #12
Some of this is specious melm00se Mar 2022 #13
re: "Can something be made more illegal?" discntnt_irny_srcsm Mar 2022 #14
Like the log I heard some businesses make you do to log your work time? yagotme Mar 2022 #15
my unanimous decision trumps yours jimmy the one Mar 2022 #16
re: Miller... looking to move in standup comedy? n/t discntnt_irny_srcsm Mar 2022 #18
re: juvenile ad hominem jimmy the one Mar 2022 #19
Okay discntnt_irny_srcsm Mar 2022 #20
No one objected, because Miller was deceased, yagotme Mar 2022 #21
Re: "my unanimous decision trumps yours" Surf Fishing Guru Mar 2022 #22
1939 Miller decision, cont'd #1 jimmy the one Mar 2022 #23
RE: 1939 Miller decision, cont'd #1 Surf Fishing Guru Mar 2022 #28
weasel words jimmy the one Mar 2022 #29
That sounds like confession by projection from you. Surf Fishing Guru Mar 2022 #32
prior state's right to bear arms decrees circa 1776 jimmy the one Mar 2022 #24
RE: State RKBA provisions Surf Fishing Guru Mar 2022 #30
bluntly speaking jimmy the one Mar 2022 #25
Bluntly true . . . Surf Fishing Guru Mar 2022 #31
provide links or excerpts for 'dissents' jimmy the one Mar 2022 #33
You couldn't have read the dissents . . . Surf Fishing Guru Mar 2022 #34
You can read but you cannot comprehend much jimmy the one Mar 2022 #35
That's some inventive reading . . . Surf Fishing Guru Mar 2022 #36
SUDDENLY, an excoriation jimmy the one Mar 2022 #37
Take a breath, calm down . . . Surf Fishing Guru Mar 2022 #38
Post removed Post removed Mar 2022 #40
Post removed Post removed Mar 2022 #41
Post removed Post removed Mar 2022 #42
Sorry, not sorry, sanctimonious is what I do . . . Surf Fishing Guru Mar 2022 #39
a blast from the past jimmy the one Mar 2022 #26
scalia erred in heller -1 jimmy the one Mar 2022 #27
mel's smoke and mirrors jimmy the one Mar 2022 #17
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