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11-Feb-2020 16:02

They argue that the framers also contemplated a right to individual and community protection.[13] This view embodies the individual rights theory.

This debate has raised often profound questions, but questions generally treated hastily, if at all, by the community of constitutional scholars.[14] For example, if one accepts the collective rights view of the Amendment, serious questions arise concerning whether the federal government's integration of the National Guard into the Army and, later, the Air Force have not in all but name destroyed the very institutional independence of the militia that is at the heart of what the collective rights theorists see as the framers' intentions.[15] Even the gun control debate is not completely resolved by an acceptance of the collective rights theory.

Yet, the effect of social change on the question of the Second Amendment is a two-edged sword.

If one of the motivating purposes behind the Second Amendment was to provide a popular check against potential governmental excess, then does the professionalization of national and community security make the right to keep and bear arms even more important in the modern context?

For individual rights theorists, this shift immediately raises the question of whether, given the tremendous changes that have occurred in weapons technology, the framers' presumed intention of enabling the population to resist tyranny remains viable in the modern world.[22] Although partly a question of military tactics, If private ownership of firearms is constitutionally protected, should this right be protected with the original military and political purposes in mind, or should the protection of firearms now be viewed as protecting only those weapons used for personal protection or recreation?

[24] Or, given that all firearms are potentially multi-purpose, and that all firearms potentially may be used for military, recreational, or personal defense as well as for criminal purposes, what effect should legislatures and courts give to the framers' original military rationale?

With the exception of Native Americans, no people in American history have been more influenced by violence than blacks.

Private and public violence maintained slavery.[27] The nation's most destructive conflict ended the "peculiar institution."[28] That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence[29] and abetted by Supreme Court sanction.[30] Jim Crow was sustained by private violence, often with public assistance.[31] If today the memories of past interracial violence are beginning to fade, they are being quickly replaced by the frightening phenomenon of black-on-black violence, making life all too precarious for poor blacks in inner city neighborhoods.[32] Questions raised by the Second Amendment, particularly those concerning self-defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection, thus take on a peculiar urgency in light of the modern Afro-American experience.

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The first of these was to ensure popular participation in the security of the community, an outgrowth of the English and early American reliance on posses and militias made up of the general citizenry to provide police and military forces.[16] The second purpose was to ensure an armed citizenry in order to prevent potential tyranny by a government empowered and perhaps emboldened by a monopoly of force.[17] The second argument, that an armed populace might serve as a basis for resistance to tyranny, raises questions of its own.

It is a constitutional debate that has taken place largely in the absence of Supreme Court opinion.[3] It is a historical controversy where the framers' intentions have best been gleaned from indirect rather than direct evidence.[4] It is a scholarly debate that members of the academy have been until recently somewhat reluctant to join,[5] leaving the field to independent scholars primarily concerned with the modern gun control controversy.[6] In short, the Second Amendment is an arena of constitutional jurisprudence that still awaits its philosopher.

The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms.

Where should the proper lines be drawn with respect to modern firearms, all of which employ technologies largely unimagined by the framers?

[25] Societal, as well as technological, changes raise questions for advocates of the individual rights view of the Second Amendment.It poses important questions about notions of the living Constitution, and to what extent that doctrine can be used to limit as well as extend rights.



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