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jimmy the one

(2,708 posts)
43. scalia mischaracterized england's 'have arms' decree of 1689
Sat Aug 10, 2019, 11:42 PM
Aug 2019

sarisataka: the {2nd} Amendment does not grant a right but recognizes the prior existence. True for all rights.

The bill of rights both limits congress as well as protects (not grants) individual rights; in the 2ndA case it limited congressional infringement, as well as protected, when written, for white males, the 'individual' right to belong to a well regulated militia, as was their civic duty per 2ndA & militia act of 1792.
______________________________

Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.

sarisataka: Note the wording, adult male inhabitants to possess arms. Not the militia, not to keep the lock under government control but to possess.

Along with ignoring 'cooperate in defence', the flaw in your reasoning is the same as joyce malcolm's:

Amici Curiae (21 british scholars) have an interest in the (2008 scalia led supreme) Court having a well-informed and accurate understanding of the Anglo-American tradition to “have arms” from which {2ndA} originated:
The US Supreme Court correctly found that the English right to “have arms” was an expression of the same right that has “long been understood to be the predecessor to our Second Amendment.”
II. THE ALLOWANCE OF A RIGHT TO “HAVE ARMS” SET FORTH IN THE 1689 DECLARATION OF RIGHTS WAS THE PRECURSOR TO THE SECOND AMENDMENT.


contrary to discredited scholarship upon which Heller [decision] relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”).
Rather, it referred to a right to possess arms in defense of the realm.The “have arms” provision in the [1689] English Declaration of Rights .. provided two protections to the individual. First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.

Where the Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading “individual” to mean “private,” “defence” to mean “defense against harm by private individuals acting for private purposes” and equating “self-preservation” with the modern usage of the term “self-defense.
In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point.The origins of [2ndA] in the English right to “have arms” demonstrate that this right of self-preservation/self-defense gives individuals the right to collectively defend their public interests against organized assault or tyranny, not only in case of a foreign invasion, but, in 1689, in the event of a Catholic plot to overthrow English Protestants. Moreover, the right of “self-preservation” was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise.

...The term “self-defence” was used in the same sense: principled rebellion of the people against tyranny. Contrary to Malcolm’s view, the “have arms” provision was the result of a political dispute over whether ultimate control over the militia – the fighting force composed of qualified subjects of the realm – resided with the sovereign, or in Parliament. Immediately prior to the 1662 Militia Act, Parliament, not the sovereign, held control over militia.

Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law.
I. THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION

https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf

Yup, Scalia's opinion in DC vs Heller enshrined something made up out of whole cloth RockRaven Aug 2019 #1
And Scalia in Heller literally got people killed in DC sharedvalues Aug 2019 #4
Money and power Buzz cook Aug 2019 #2
1939 scotus miller decision jimmy the one Aug 2019 #3
Can we change the name of this forum? "Gun control and made-up Republican RKBA"? sharedvalues Aug 2019 #5
Or better "Gun control and our well-organized militia" sharedvalues Aug 2019 #6
Consider this possibility: guillaumeb Aug 2019 #36
2ndA and slavery jimmy the one Aug 2019 #56
It's been considered here several times before, and shown to be false friendly_iconoclast Aug 2019 #63
I would like to see them back up this claim. gejohnston Aug 2019 #7
gun control hardly needed in 1790's jimmy the one Aug 2019 #8
not true gejohnston Aug 2019 #9
As you've seen, if ones' only strengths are 'repeated argument by assertion'... friendly_iconoclast Aug 2019 #11
the go to after gejohnston Aug 2019 #16
then 1792, and now 2019 jimmy the one Aug 2019 #12
Historial fact, gejohnston Aug 2019 #14
ad hoc u hoc et al hoc jimmy the one Aug 2019 #19
I made no such claim gejohnston Aug 2019 #37
henry dearborn's firearm census 1803 jimmy the one Aug 2019 #20
Estimated ownership gejohnston Aug 2019 #30
malcolm, far right wing gun guru jimmy the one Aug 2019 #21
Personal attack gejohnston Aug 2019 #27
his rebuttals leave me almost speechless jimmy the one Aug 2019 #34
I honestly don't care. gejohnston Aug 2019 #39
It's sad that you and 16 other people believe that law review articles actually have legal weight friendly_iconoclast Aug 2019 #10
A interesting article with an irredeemable flaw sarisataka Aug 2019 #13
So you agree the NRA changed the meaning of the 2nd Am sharedvalues Aug 2019 #17
I feel like a squirrel preparing for winter, sarisataka Aug 2019 #18
Shrug. The NRA is a domestic terror organization sharedvalues Aug 2019 #24
no irredeemable flaw, except by you jimmy the one Aug 2019 #22
Many words... I will use fewer sarisataka Aug 2019 #23
moot, miller jimmy the one Aug 2019 #25
Thank you. I didn't have the energy to deconstruct sarisataka's many misleading points sharedvalues Aug 2019 #29
1938 DoJ amicus brief to 1939 supreme court jimmy the one Aug 2019 #28
Wow. DOJ 1938: "2nd A does not grant to the people the right to keep and bear arms" sharedvalues Aug 2019 #32
And finally we come to agreement sarisataka Aug 2019 #40
? What? sharedvalues Aug 2019 #45
bor both guarantee of rights & limitation on congress jimmy the one Aug 2019 #49
We may be reaching the same point sarisataka Aug 2019 #41
scalia mischaracterized england's 'have arms' decree of 1689 jimmy the one Aug 2019 #43
wrong as usual gejohnston Aug 2019 #46
cognitive dissonance jimmy the one Aug 2019 #47
No, I said what the Miller decision said gejohnston Aug 2019 #48
just ask jimmy the one Aug 2019 #50
why aren't you citing the decision itself? gejohnston Aug 2019 #51
Obvious answer: Because, when read in full, it doesn't say what James claims it says. friendly_iconoclast Aug 2019 #52
defence, english style jimmy the one Aug 2019 #54
No contradiction there, save in your own mind friendly_iconoclast Aug 2019 #55
not mutually exclusive gejohnston Aug 2019 #57
plausible enough jimmy the one Aug 2019 #58
the comprehention problem is strictly yours, gejohnston Aug 2019 #60
based on england's 'assize of arms' jimmy the one Aug 2019 #53
What other right is a collective right? krispos42 Aug 2019 #15
But Scalia claimed to be an originalist. guillaumeb Aug 2019 #26
Yes. Scalia was a right-wing partisan and his "originalism" was just a front sharedvalues Aug 2019 #31
Scalia had an agenda, guillaumeb Aug 2019 #33
Oh no question, he was a judicial activist. Exactly sharedvalues Aug 2019 #35
Thomas is just as bad. So many conflicts of interest. eom guillaumeb Aug 2019 #38
Yes. His wife is an insane rightwing crazy. sharedvalues Aug 2019 #44
Funny, gejohnston Aug 2019 #42
Been following this melm00se Aug 2019 #59
Yes sharedvalues Aug 2019 #62
Yup. "Only slender support for individual right to own gun" sharedvalues Aug 2019 #64
This idea of a collective right is so interesting to me. MarvinGardens Aug 2019 #61
Considering the legal treatment of GLBT, minorities, women and minors SQUEE Aug 2019 #65
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