"The Second Amendment has been the subject of one of the greatest pieces of fraud on the American public."


Mon, Apr 14th, 2014 11:00 by capnasty NEWS

On The Washing Post, John Paul Stevens explains the real logic behind the second amendment when it was created: to allow the separate states to create a well-regulated Militia in order to defend themselves if "a national standing army might pose a threat" to their security. That's what the "right of the people to keep and bear Arms" means. Reportedly, however, the understanding of that meaning has changed, thanks in part to special interest groups such as the National Rifle Association.

There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.



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