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Different look at 2nd Amendment

True horn

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Jun 17, 2010
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Portland Oregon
Rather than dwell on this individual/collective right perhaps it is interesting to ask the question where did Scalia et al get the notion that self defense was an included right in the 2nd? Here is a list of the states that were around at the time (I include Vermont which was at that time a republic) and what their statement of rights contains with respect to bearing arms.

Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. Art. I, § 13 (enacted 1776 without explicit right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed" added in 1971).

Vermont: That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).

South Carolina: A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. Art. 1, § 20 (enacted 1895).

Rhode Island: The right of the people to keep and bear arms shall not be infringed. Art. I, § 22 (enacted 1842).[Self-defense right protected, Mosby v. Devine, 851 A.2d 1031, 1043 (R.I. 2004).]

Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. Art. 1, § 21 (enacted 1790, art. IX, § 21).

North Carolina: "That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." Bill of Rights, § XVII.

New Jersey: No provision.

New York: No provision.

New Hampshire: New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. Pt. 1, art. 2-a (enacted 1982).

Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).

Maryland: No provision.

Georgia: A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." Art. I, § 4.

Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).

Connecticut: Every citizen has a right to bear arms in defense of himself and the state. Art. I, § 15 (enacted 1818, art. I, § 17). The original 1818 text came from the Mississippi Constitution of 1817.

Some of these statement of rights postdate the drafting of the BOR and probably contain no useful guidance, but the rights guaranteed to inhabitants of Vermont, Pennsylvania, and Connecticut are from the period and specifically include the right of self defense. Why was no mention made of the right to self defense in the BOR? Where does the Supreme Court find that right other than common law?
 
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