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The Second Amendment
40 posts, newest first (page 2 of 2).
St. George Tucker and Joseph Story, the first great commentators on armsTucker in 1803 and Story in 1833 both called the right to keep and bear arms the palladium of liberty. Their words explain why the Supreme Court cites them. George Mason and the well regulated militia composed of the body of the peopleMason wrote Virginia's Declaration of Rights, defined the militia as the body of the people, and refused to sign the Constitution until it had a bill of rights. The Powder Alarm and the British arms embargo that came before LexingtonGage's powder seizure and the Crown's 1774 embargo taught Americans that disarmament comes first. That, as much as April 1775, shaped the Second Amendment. The right of the people means the same thing in the First, Second and FourthThe Bill of Rights uses "the right of the people" three times and never means the state. Read side by side, the collective-right theory breaks on grammar. How Congress once set out to make every American a rifleman in 1903In 1903 Congress built a program to teach civilians to shoot and sold them surplus rifles. It still runs, and it says something about the Second Amendment. The Sullivan Act of 1911 and the century New York spent rationing carry permitsNew York's Sullivan Act gave officials discretion over who could carry a handgun. A century later Bruen ended it, and Albany answered with a new set of hurdles. Justice Thomas stood alone in Rahimi, and his dissent deserves a careful readingEight justices upheld the federal ban on guns for people under domestic-violence orders. Justice Thomas dissented, and conservatives can learn from both sides. Caetano v. Massachusetts and the stun gun that defended a mother's rightsIn Caetano the Supreme Court unanimously vacated a ruling that stun guns fall outside the Second Amendment because they postdate 1791. Modern arms are covered. Cruikshank, Colfax and how the Court left freedmen disarmed in 1876Cruikshank held the Second Amendment bound only Congress, after the 1873 Colfax massacre. Freedmen stayed exposed until McDonald fixed incorporation in 2010. United States v. Miller, the one-sided 1939 case that muddled gun law for yearsMiller upheld a tax on short-barreled shotguns after no lawyer argued for the defendants. Lower courts misread it as militia-only, and Heller set it right. What the ratifying conventions demanded before Madison drafted an arms rightState conventions in 1787 and 1788 asked for an arms guarantee in words about citizens and individuals. Madison condensed those demands in June 1789. Madison's Federalist 46 and the advantage of being armed that tyrants fearIn Federalist 46 Madison calmed fears of a federal army by pointing to the armed citizens of America. Read it with Hamilton's No. 29 and the Anti-Federalists. Every able-bodied man must own a musket, the Militia Act of 1792 and its heirsThe 1792 Militia Act ordered enrolled citizens to buy their own muskets, powder and flints, which shows the founders assumed an armed people, not an armory. What Pennsylvania and Vermont wrote about arms before the Second AmendmentEarly state constitutions protected arms for defence of themselves and the state, beside limits on standing armies. They show what Americans meant. Blackstone's fifth auxiliary right and how it shaped American thinking on armsBlackstone listed arms for defence as the fifth auxiliary right. Read the passage closely, see why Americans owned the book, and why Heller leaned on it. The 1689 English Bill of Rights and the arms clause Americans refused to copyEngland's 1689 arms clause protected Protestants, by rank, as Parliament allowed. The Americans wrote something broader, and the difference is the point.
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