Dave Hardy On The Second Amendment
BY Herschel Smith
5 years, 1 month ago
On SSRN: The Janus-faced Second Amendment: Looking Backward to the Renaissance, Forward to the Enlightenment. I’ve just started circulating it to law reviews. It has two themes:
1. The 2A has two clauses because it had two independent purposes, each with a different constituency. Classical Republicans wanted a guarantee against the militia, as a system, being neglected. Jeffersonians want a guarantee of an individual right to arms. For most of the Framing period, a person, group, or State chose one of the other. With the Virginia ratifying convention of 1788, someone finally realized they could do both and please both groups. To construe the right to arms as limited to militia service (as the Heller dissenters did) is to misconstrue the history. They were separate ideas, and to the extent we can assign importance, the right to arms was universally seen as more important.
Good. This is the right answer. I look forward to reading the whole article.
On September 17, 2019 at 9:07 am, Frank Clarke said:
I forget who said it: “The militia clause wasn’t a rationale; it was an excuse.” The point being that were anyone to ask “Why?”, the response could be “For one, the militia…”, the implication being that there are lots more ‘excuses’ where that one came from.
On September 17, 2019 at 9:11 am, Herschel Smith said:
Thanks Frank. Nice segue.
http://www.captainsjournal.com/2019/09/02/do-i-really-have-to-be-a-member-of-the-militia/