The big myth of the second amendment

This 100 page paper was written 10 years before the Heller decision by Scalia.

In my view, Scalia has exceeded the parameters of originalism with his 2008 decision on District of Columbia v. Heller, insofar as the debate between the collective vs individual rights aspects based on framers intent, but, given his ruling, it now has the full effect of law, unless, of course, it is overruled at some future date, which not likely with the current 6/3 conservative court. I think this paper documents precisely why Scalia, accurate in some respects (that the 'right to bear arms' is not absolute and can be regulated), but not in others, violated in own principle of originalism and textualism because of his failure to take a scholarly dive into the subject, (though he appears to, but he falls short of the mark, in my humble opinion) and really discover the why of the second amendment, rather than give credence to the popular romantic imagery "to give the people the right to fight tyranny, whether foreign or domestic', being propagated by the NRA, and second amendment advocates.

From the abstract (quote)
Professor Bogus argues that there is strong reason to believe that, in significant part, James Madison drafted the Second Amendment to assure his constituents in Virginia, and the South generally, that Congress could not use its newly-acquired powers to indirectly undermine the slave system by disarming the militia, on which the South relied for slave control. His argument is based on a multiplicity of the historical evidence, including debates between James Madison and George Mason and Patrick Henry at the Constitutional Ratifying Convention in Richmond, Virginia in June 1788; the record from the First Congress; and the antecedent of the American right to bear arms provision in the English Declaration of Rights of 1688.

This paper is no stream of consciousness work, it's well thought out, annotated, and documented, using arguments made by the prominent author of the second amendment, James Madison, arguments presented by Patrick Henry and George Mason at the ratifying convention of 1788,

Free to download, it's a good read, I recommend it.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465114

Americans have an image of the militia -- minutemen rushing with muskets oto the greens at Lexington and Concord to fire the "shot heard around the world". The fact that colonists were armed helped make the Resolution possible. Indeed, it was a British plot to confiscate American militia weapons that propelled Paul Revere on his famous ride. These images blend with other visions of colonial America. Many believe guns and survival went hand-in-hand ni early America ---that settlers depended on firearms to defend themselves from Indians, thieves, and wild animals, as well as to hunt for food. Some assume that the Founders incorporated the right to bear arms in the Bill Of Rights because of an armed citizenry had been important to security in colonial America and essential to throwing off the yoke of British oppression.

Much of this is myth. It is not myth in the sense that the images are wholly divorced from historical truth Rather, myths can be powerful and sinister because they blend fact and fiction.

Myths do not so much misrepresent as mislead, not so much concoct as distort. That is the case with the Second Amendment. When the Bill of Rights as adopted some believed that the right to bear arms was important to defend and feed citizens and their families or to resist foreign aggression and domestic tyranny. But, as this article will show, that was not the principle reason that the Founders created the Second Amendment.

The Second Amendment was not enacted to provide a check on government tyranny, rather, it was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia ot disarm the state militia and thereby destroy the South's principal instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions.

In short, the south bargained for the gaurantee of 2a to protect a big industry, slavery. Owning firearms, back then, was like clothing, ti was a given, no one question it, no one thought of it as a right that needed to be protected, but the south feared that congress and it's newly acquired powers could disarm their state's militia and thus prevent them from being able to control and manage slavery, so that is why they bargained for the second amendment, otherwise they would not have signed the ratification document.

Slavery was the why of 2a. yes, I know there is a lot of debate with guys like Mark Levine etc., who think they have a solid argument against this but read this paper, he debunks all of it.

 

I believe you should have a debate with Golem. He argues that a militia is a prerequisite for owning and bearing arms.

No militia would be required to hunt down runaway slaves.

 

Amend/repeal it then.

 

I have said no such thing! Ascribing to me nonsense that YOU made up is very dishonest. You must apologize.

 

I don't think I will do that.

A quote from "History 101: Why the 2nd Amendment?"

The Second Amendment contains the right to "own and bear arms".

A quote rom: "English 102: "...to keep and bear arms"

 

QUOTE where I said what you claimed.

You: "He argues that a militia is a prerequisite for owning and bearing arms."

I have argued no such thing! Quote where I say that a militia is prerequisite for owning and bearing arms. Or apologize!

It is NOT. I have not uttered a single word about any "prerequisites" I have debated only about the 2nd A and have argued that the 2nd A refers only to bearing arms as part of a militia. Not a single word about "prerequisites".

Unless you don't know what the word "prerequisite" means. In which case,... look it up... and then apologize. Hint: the words "prerequisite" and "refers" are NOT synonyms. They are not even related.

I expect your apology.

 

A difference without distinction.

I would advise you not to hold your breath.

 

You see no distinction between "referring" to something and it being a "prerequisite"?

You accused me of saying something I never said. You had the opportunity to show that it was an honest mistake. But you refuse. So if it wasn't an honest mistake, it was a dishonest one. Have you no shame?

 

I am not into your word play.

I don't consider it a mistake.

 

That is not what I gathered from his writing.

In the south, especially in Virginia in the late 18th century, militias were used for slave patrols and to control slavery. There is plenty of evidence for this.

This is historical fact, see;

 

I'm here to debate. What are you here for?

 

There is no myth at all here this is historical revisionism attempting to vilify the second amendment so as to undermine it

 

The slave patrols were from who the original police in the south evolved from.
https://lawenforcementmuseum.org/2019/07/10/slave-patrols-an-early-form-of-american-policing/

 

That is not the same as saying they were required or that the Second Amendment was created for that purpose.

 

In his dissent from the majority opinion on Heller Stevens rebuts Scalia using historical references to numerous restrictions state and municipal governments placed on gun possession. "State and local governments had been regulating arms since the Founding era, with laws that ran the gamut from permit requirements to prohibitions on particular classes of weapons to bans on possession by particular classes of people. Indeed, a search of the Repository of Historical Gun Laws, a free online resource hosted by the Center for Firearms Law at Duke,7 shows that more than 1,000 state and federal laws had been enacted by the time Justice Stevens was born in 1920."
"Justice Stevens dissented, and did so on Justice Scalia’s turf. He looked at the same historical record, the same linguistic facts, and came to the opposite conclusion: A native speaker of English, reading the words of the Second Amendment in 1791, would have understood them to convey a military meaning. Although Justice Scalia pointed to a few contrary examples, Justice Stevens quoted his own words back to him: “The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used.” Most linguists and historians agreed with Stevens’s interpretation, emphasizing that the phrase “bear arms” in 1791 was used most often in a collective, military sense."
https://judicature.duke.edu/articles/stevens-j-dissenting-the-legacy-of-heller/

He also raises the issue of the constitutional conflict between the rights of gun owners and the right of citizens to be safe and secure from the dangers created by gun ownership.

Ultimately, the debate over the 2nd's meaning is not about possessing a firearm but rather the government's ability to regulate said possession. Whether government has the right to act to protect the public due to the inevitable link between firearm possession and firearm violence.

 

It’s his M.O. It’s also why I don’t engage him anymore. Waste of time.

 

That is not true. You do engage me. Just do it through another person. That is your M.O.

 

The contortions anti-gunners perform.

 

Why? You just supported what he said with your comment above. You just used different language.

 

Much of this is species nonsense.
The slavery thing is straight up bunkum, as generally local law enforcement would simply deputize a few locals to try to round up fugitive slaves. Though the South had been trying to pass a national fugitive slave law beginning almost at the country's founding they were thwarted by the 3/5 compromise and the filibuster on occasion. Most gun laws prevented open carry within the city limits in the 19th century not ownership. And then only by visitors. As is made self evident by the failure of the James gang's raid on North Plainfield and the destruction of the Dalton gang in Coffeyville.

 

So you admit you did it on purpose. There is a word for that which I am not allowed to use in this Forum.

 

You are allowed to say "good work".

 

No! "refer to" is not just different language from "requirement". They are completely different concepts Now I expect your apology. Unless you can quote me saying that the 2nd A requires being part of a militia to bear arms, instead of what I actually said, which is that it's the only thing it refers to.

In fact, I have explicitly and repeatedly stated that a right to own guns existed and was considered desirable at the time. But it's just not mentioned in the 2nd A. Never have I said it's a requirement

So your retraction is also in order.

 

I'll trade you retraction for retraction. You go first.

 

How can I retract from something YOU said?

I ALWAYS retract when somebody demonstrates (like I have) that I misinterpreted something. I would hate losing credibility if I don't retract. Looks like "credibility" is not something many right-wingers value much. It's a phenomenon I have been noticing since Trump's post-truth era began. But, as for myself, I do value it.