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12-Aug-2020 20:45

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?

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.[18] Battles in which privately armed citizens vanquished regular troops, or at least gave "a good account of themselves," were not only conceivable--they happened.[19] Modern warfare has, of course, introduced an array of weapons that no government is likely to permit ownership by the public at large[20] and that few advocates of the individual rights view would claim as part of the public domain.[21] The balance of power has shifted considerably and largely to the side of governments and their standing armies.

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

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They argue that, while maintaining a "well-regulated militia"[12] was the predominate reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting reason.

In the eighteenth century, the chief vehicle for law enforcement was the posse comitatus, and the major American military force was the militia of the whole.

While these institutions are still recognized by modern law,[26] they lie dormant in late twentieth-century America.

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.

They argue that, while maintaining a "well-regulated militia"[12] was the predominate reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting reason.

In the eighteenth century, the chief vehicle for law enforcement was the posse comitatus, and the major American military force was the militia of the whole.

While these institutions are still recognized by modern law,[26] they lie dormant in late twentieth-century America.

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.

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?