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June 29, 2010

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For many reasons discussed by the author, I too am skeptical of certain kinds of originalism, particularly those which wonder what the authors of the Constitution or an amendment would do with a particular case. That said, terms of art like "privileges and immunities" or "right to keep and bear arms" are well informed by historical inquiry, because the most cursory historical analysis would show that the ordinary arms of a light infantrymen--i.e., the 18th Century militia--are exactly what the Founders aimed to protect in the Second Amendment.

Also, there is a false dilemma with the distinction of defense from tyranny, foreign inavaders, and defense from criminals. Both are rooted in the same idea: that a people, individually and collectively, have a right of self defense. This is why most State Constitutions, which nearly all feature a right to bear arms, use the langauge "the right to keep and bear arms in defense of themselves and the state." Further, the collective defense argument would make mincemeat of the Assault Weapon bans favored by Mayor Daley and his ilk. It is precisely those weapons which are effective for resisting tyranny, even in the 21st Century, and such laws would not pass constitutional muster when the combined impact of the purpose, meaning, and text of the Second Amendment is brought to bear on the question.

Finally, the one area of pseudo-history that should not pass muster is the "collective right" myth perpetrated in cases like Bass vs. US and Cases vs. US by the Circuit Courts that aimed to defang the venerable Second Amendment in the wake of Miller vs. US.

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