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Where should the proper lines be drawn with respect to modern firearms, all of which employ technologies largely unimagined by the framers? Societal, as well as technological, changes raise questions for advocates of the individual rights view of the Second Amendment.
Advocates of stricter gun controls have tended to stress the Amendment's Militia Clause, arguing that the purpose of the Amendment was to ensure that state militias would be maintained against potential federal encroachment.Some of these questions are obvious and frequently asked, such as where to draw the line between an individual's right to possess arms and the corollary right to self-defense on the one hand, and the community's interest in public safety and crime control on the other.Other questions are more elusive, more difficult to pose as well as to answer.Do courts really protect rights explicit or implicit in the Constitution, or is the courts' interpretation of rights largely a dialogue with the elite, articulate sectors of society, with the courts enforcing those rights favored by dominant elites and ignoring those not so favored?Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African-American history.This article explores Second Amendment issues in light of the Afro-American experience, concluding that the individual rights theory comports better with the history of the right to bear arms in England and Colonial and post-Revolutionary America.
The article also suggests that Second Amendment issues need to be explored, not only with respect to how the right to keep and bear arms has affected American society as a whole, but also with an eye toward subcultures in American society who have been less able to rely on state protection.It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, ...and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, The often strident debate over the Second Amendment is like few others in American constitutional discourse and historiography.The framers had firsthand experience with such a phenomenon, but they lived in an age when the weapon likely to be found in private hands, the single shot musket or pistol, did not differ considerably from its military counterpart.Although the armies of the day possessed heavier weapons rarely found in private hands, battles were fought predominately by infantry or cavalry with weapons not considerably different from those employed by private citizens for personal protection or hunting. Battles in which privately armed citizens vanquished regular troops, or at least gave "a good account of themselves," were not only conceivable--they happened. Modern warfare has, of course, introduced an array of weapons that no government is likely to permit ownership by the public at large and that few advocates of the individual rights view would claim as part of the public domain. The balance of power has shifted considerably and largely to the side of governments and their standing armies.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. 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?