I have to admit that I am not sure how the misinterpretation of the Second Amendment received any traction: especially from "legal scholars". Then again, I don't have a high opinion of "scholarship" in the United States. That said, here is the short form, which pretty much blows any long tome most "Second Amendment Scholars" produce.
There’s a problem when you go around saying someone supports or doesn’t support the Second Amendment: How much do you understand what it really means?
This is a model that George Mason pushed relating to what would become the Second Amendment. It pretty much summarises the issues surrounding its adoption. It was adopted by Virginia:
“That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power”When the American Revolutionary War began in April 1775, the colonial revolutionaries did not have an army. Previously, each colony had relied upon the militia, made up of part-time civilian-soldiers. The initial orders from Congress authorized ten companies of riflemen. The first full regiment of Regular Army infantry, the 3rd Infantry Regiment, was not formed until June 1784. After the war, the Continental Army was quickly disbanded because of the American distrust of standing armies, and irregular state militias became the new nation’s sole ground army, with the exception of a regiment to guard the Western Frontier and one battery of artillery guarding West Point’s arsenal.
The States had their militias and the Federal Government had an Army and the Naval forces. The problem is that the US Constitution gave congress the power to arm the militia, among other things (article I, Section 8, Clause 16). If you actually spent time reading the primary sources instead of quotes taken out of context, you would find that was the issue. Not private arms.
The US Constitution makes it clear in the preamble. You know the bit people usually truncate as “we the people” that one of the purposes of the US Constitution was to provide for the “Common defence”. There are other goals which the seem to contradict the “gun rights” position, like “insure domestic Tranquility” and “promote the general Welfare”. A close read of the document shows that rebellion runs contrary to its principles (Hint: try Article III section iii).
There is a concept in the law that if a legal document is silent on a topic. That is it fails to mention something, That topic is not covered by the law.
So, show me EXACTLY where the US Constitution mentions “self-defence” or “tyranny” and we can have a discussion.
Otherwise, you need to have a serious rethink of what exactly the Second Amendment means.
Oh yeah, and historically the concept of self-defence required that only the minimum of force reasonably necessary to stop that threat should be used. Reasonableness was left to the finder of fact, not the defendant. That meant that deadly force was usually the LAST resort. not the first.
You can do the research for yourself (start with Blackstone's commentaries).
The Common law position on self-defence also contradicts any interpretation of the Second Amendment other than it was meant to address Article I, Section 8, Clause 16 of the US Constitution.
The reality is that the Second Amendment was intended on preserving a system which would be like the one Switzerland HAD. I say "had" because it hasn't had a universal military service requirement for a while. What I am talking about is a system where the professional, full time military is small and mostly made of administrators and trainers. The bulk of the forces would be part-time soldiers.
Switzerland doesn't have this system and the US hasn't for quite some time.
The US has a large, standing military, which was exactly what the founders were hoping to prevent. That said, the Second Amendment is a relic which has no purpose in modern society. Reinterpreting that Amendment to guarantee a personal right to weaponry is wrong for a multitude of reasons. First off, it goes against the principles of “insure domestic Tranquility” and “promote the general Welfare”.
Had Scalia been honest in his opinion, he would have had to admit that it was indeed his job to declare the Amendment no longer relevant to modern society: not to reinterpret it to fit a political agenda.
So, don't talk to me about supporting the Second Amendment unless you are doing so in regard to drastically reorganising the US military.
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