legaleagle_45
Member
- Joined
- Aug 23, 2007
- Messages
- 834
I agree. However i also believe that the founders took what they saw in common law and changed to meet their own requirements. Certainly the RBA in the english BoR was no where near what is in the 2A. Yes we can see a process and must not be ignored.
Certainly, the 2nd is more expansive that the English version, yet not more expansive than you might imagine. For example, at the time, protestants represented about 95% of the population in England. Protestants were explicitly mentioned primarily because the Game Acts were used specifically to disarm them. While Catholics were thereafter excluded from service in the militia, there was no active effort to take away their private arms.
I believe there is a right to self defence within the BoR, i just don't think it comes specifically from the 2A.
I think it is there by virtue of the "keep" right. Blackstone thought that the English BoR included an individual self defense right in addition to a militia right or as he termed them:
the natural right of resistance and self-preservation
Now take a look at the cases decided under a reformulated Game Act after the adoption of the English BoR's:
[The Act]“not extend to prohibit a man from keeping a gun for his necessary defence.” Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739); “[T]he mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family". Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744); “A gun may be kept for the defense of a man’s house". Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The
King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) and Rex v. Hartley, II Chitty 1178, 1183 (1782).
The perceived "militia only" or "militia primarily" focus, is based, I believe, upon the debates in the Virginia Ratification Convention. Virginia took the Constitution section by section and debated same. The quotes oft times attributed to gun rights appears during the debates over Article I, Sec 8, clauses 15 and 16... which are the provisions directly related to the militia. Of course, those debates related primarily to the militia and the use of those quotes tend to emphasize the importance of the militia when it comes to gun rights. The Virginia Ratifying Convention did not directly address the contents of the Bill of Rights. The convention assigned to a committee the duty of developing a Bill of Rights and there is very little debate on those provisions which the Commitee proposed. Now with that as a background, consider the results of the Virginia Ratifying Convention. They proposed two seperate sets of amendments, the first was:
"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following.....17th. 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. ...19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead. "
The second set of amendments dealt with amendments to the Constitution itself... to deal with perceived flaws in the intrument and was described as follows:
AMENDMENTS TO THE CONSTITUTION. ....."11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.
http://www.constitution.org/rc/rat_va_23.htm
So basically, what you had was a debate over the militia clauses which resulted in a proposed amendment specifically allowing the states to arm same, but in the course of that debate, the individual right was discussed as an aside. The proposal which developed into the 2nd Amend, on the other hand, was developed by a committee and there is very little discussion about the parameters of the individual right.
The obligation is one similar to jury service.
Change that to "The right is one similar to jury service" and we are there. (For "bear arms" but not "keep arms").
Enough for now.....