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A Risky Gambit

Elaine McArdle has an article at the Harvard Law Bulletin about the prospects for the Supreme Court overturning Parker, or upholding the Second Amendment as an individual right. I do think they're likely to uphold, but it's by no means a sure thing, and I do think that gun-rights advocates are taking a gamble.

It would have been nice if the framers could have foregone that purpose clause, because it certainly allows gun opponents to throw a lot of obfuscatory mud around the issue. I wonder how the prospects would be for an amendment to remove it? That might be the only relief if the court rules the wrong way.

Posted by Rand Simberg at July 07, 2007 11:32 AM
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link please

Posted by Brad at July 7, 2007 12:45 PM

I hope that Kelo would be a model for what happens if the Supreme Court overturns Parker. IOW, I hope that a reversal would lead to a wave of legislation at the state and local level affirming the right to arms.

Posted by Jonathan at July 8, 2007 04:09 AM

The Founders put the clause in because the Second Amendment is primarily about their preference for a generally-armed populace, organized into militias, versus a standing army. The Anglo-American experience with standing armies was at that time colored by the bad experiences with Cromwell's New Model Army and James II's use of standing troops in contravention of the constitution. See Michael Barone's new book on the latter. (By the way, the Founders would have considered today's National Guard to be a "select militia", almost as suspect as a standing army. By militia they meant someting more like the Swiss style militia.)

They didn't think there was any need to specify an individual right to carry arms -- it was assumed under Common Law. Blackstone considered armed self-defense to be one of the derivative rights stemming from the rights to life, liberty, and property.

Posted by Jim Bennett at July 9, 2007 10:01 AM


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