Gun Control & RKBA
In reply to the discussion: This message was self-deleted by its author [View all]jimmy the one
(2,770 posts)tortoise: It took me less than a minute to find this link. I'm surprised that you, with your extensive time spent researching this topic, missed it. Surprise, surprise...
I'm well aware of Wm Rawle's entire treatise on 2ndA & have been for nearly a decade; I divide it into two halves, a domestic half & a foreign half.
tortoise: {Rawle} states that the 2nd amendment is the fallback in the unlikely event of a state government trying to disarm its citizens: {Rawle} No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
Rawle wasn't perfect in his 'View of the Constitution' written 1825 rev 1829. He also espoused states had the right to secede. If you want to argue Rawle was incorrect in his proposition - corollary remark based on the paragraph you cited, go ahead, but he is supported by Benjamin oliver & joseph Story about the same time.
I read Rawle's last sentence above as his early construction of incorporation, applying the protection of 2ndA to the states (of course not the limitation on congress). He also is equating the people with the militia. The proposition corollary remark was a contemporary observation, the 'restraint on both' remark an opinion, since nothing like that had occurred yet. Scalia used faulty dialectic reasoning to reach his heller interpretation of rawle there.
Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The {2ndA} declares the right of the people to keep and bear arms shall not be infringed. The reason is, because a well regulated militia is necessary to the security of a free state.
. . . The provision of the Constitution declaring the right to keep and bear arms was probably intended to apply to the right to bear arms for such {militia related} purposes only, and not to prevent Congress or legislatures from enacting laws to prevent citizens from going armed. A different construction however has been given to it. (1832)
Scotus Justice Joseph Story, 1833: The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. .... The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
Which clause was Story writing of in the last sentence? the militia clause of course, since 'the people' would still be well enough equipped with guns, if the militia system was discarded.
Note in my first cited paragraph by Story, he praises the militia for essentially the same things he praises 'the people' for, thus providing a militial link to both.
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