Gun Control & RKBA
In reply to the discussion: 35 years of gun sales, showing gun control's unintended consequences [View all]jimmy the one
(2,720 posts)Scalia in heller: See J. Malcolm, To Keep and Bear Arms 3153 (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 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..
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.
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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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