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Supreme Court's Full Consideration of Second Amendment

RECEIVED Mon., Feb. 25, 2013

Dear Editor,
    Re: “Point Austin: Doing What We Can” [News, Feb. 15]: I'm surprised that a former prosecutor purportedly concerned with public safety presents the public with such an ill-informed discussion, or perhaps he has his own agenda.
    In 2008 the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on encompassing scholarship regarding the origins of the amendment, the court in District of Columbia v. Heller confirmed what had been a growing consensus of legal scholars – that the rights of the Second Amendment adhered to individuals. The court reached this conclusion after a textual analysis of the amendment, an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the amendment. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the court noted that its use was not limited to those contexts. Further, the court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription. Finally, the court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.
    Most recently in McDonald v. Chicago, the court examined whether the right to keep and bear arms is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.” The court, relying on historical analysis set forth previously in Heller, noted the English common law roots of the right to keep arms for self-defense and the importance of the right to the American colonies, the drafters of the Constitution. and the states as a bulwark against overreaching federal authority.
    The court suggested that by the late 1800s, the right to keep and bear arms became valued principally for purposes of self-defense, so that the passage of the 14th Amendment, in part, was intended to protect the right of ex-slaves to keep and bear arms. The plurality of the court also found enough evidence of then-existent concerns regarding the treatment of blacks by the state militia to conclude that the right to bear arms was also intended to protect against generally applicable state regulation.
    All of this information can be easily viewed with copious footnotes at www.law.cornell.edu or the Congressional Research Service. Please, everyone, stay informed and true to the facts.
Keepin' it real,
Philip K. Green
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