Talk for Article "The current state of Second Amendment jurisprudence"

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    It would help understanding of the Second Amendment were it to be put in context, particularly historical context. The United States were founded as a rebellion against the oppression of centralised power vested in the British Crown. The War of Independence successfully shrugged off that yoke. The US Constitution’s draftsmen sought a system to prevent a reassertion of tyranny. The reference to “militia” in the Second Amendment furthered that aim, to arm local militias to prevent the imposition of power by the Federal government or foreign power. The unanswered question is what the extent of lawlessness was in the new state that required a personal right to bear arms and why an armed local militia would not have sufficed to preserve peoples’ security at home. If the right to bear arms was granted to individuals for the protection of their homes, is the wearing of armaments in public, concealed or unconcealed an unjustified extension of that right? The post revolutionary threat was from tyranny, which clearly justified a right of local militia to bear arms to protect the hard won rights. I would be interested to see the evidence of criinal lawlessness at the time that justifies the case for universal bearing of arms.

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    “…what is still unsettled for the most part is the extent of that right and how it might be “well-regulated”.” Essential to the discussion of the 2nd Amendment is what was meant, in late 18th century America, by the phrase “well regulated.” The OED, for example, under “well-regulated,” contains an 1812 reference to “well-regulated [i.e., accurate] clocks,” an 1848 reference a “well-regulated [i.e., sensible] person,” and a “well-regulated [i.e, rational] mind.” None of these three instances have anything to to do with “regulation” in the sense of restrictive laws. Further, there is a collection of 85 essays, called the “Federalist Papers,” written in 1787 and 1788 by Alexander Hamilton, a delegate to the Constitutional Convention that wrote the Constitution, James Madison, also a delegate to that convention and the driving force behind it, and John Jay. There are a number of reference to the 2nd Amendment in those essays, as well as to the concept of the era of the nature and purpose of militias. Understanding of these thoughts is also essential. Further still, prior to the Constitutional Convention of 1787, James Madison engaged in a great deal of research concerning historical practices and functions of government. Among his considerations was that of what were called “assizes of arms,” as well as other implications of defence-by-militia as opposed to defence-by-standing-army. It must also be considered that, sometimes, neither laws nor Constitutional amendments carry much weight in the US. In 1919, an amendment was ratified banning most uses of alcoholic beverages. The amendment had close to zero effect on the American consumption of alcohol, but it was very effective in establishing and growing violent criminal gangs that made a lot of money purveying illegal alcohol. Consideration must also be made of the “effectiveness”–or lack thereof–of modern laws against drugs and that the distribution networks of illegal drugs would (and do) serve just as well for the distribution of illegal guns. There are 300 million privately-owned guns in the US–they’re not going to just disappear.

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