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User Name Thread Name Subject Posted
Taconicus BS: The Second Amendment (265* d) BS: The Second Amendment 31 Jan 11


Someone asked me to respond about this topic, but I'm posting this in a new thread because the conversation about the Second Amendmentwas taking place in some old thread about rabbis and Glenn Beck.

I studied constitutional law, but the issue is too complex for me to want to go into an argument about it, which I know would never end on this forum. I'll give you the nutshell version and then I'll shut up about it.

1. The answer first: the Second Amendment was understood, when written, to be a guarantee of the preservation of the pre-existing right of individuals to keep and bear arms. Blackstone's Commentaries (1803), commenting on the Second Amendment, wrote, "This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
2. The definition of the militia at the time was essentially the entire free, adult male population. But in any case, according to the rules of construction, which were well understood at the time, the preamble, while giving a reason for what came afterward, did not in any way define or limit what came afterward. So the bit about the "well regulated militia" doesn't have to be interpreted, because it doesn't affect the main body of the amendment.

3. In 1789 the incorporation doctrine did not exist because the post-Civil War amendments did not exist. Accordingly, at the time it was written the Second Amendment prohibited only the federal government from infringing on the right of the people to keep and bear arms. The states, which under the Constitution were considered sovereign nations, still had the general police power and could prohibit or regulate arms if they wanted to. However, practically all of them had in their state constitutions provisions almost identical to the Second Amendment guaranteeing the individual right of the population to keep and bear arms.

Will what I wrote change anyone's mind? Of course not.


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