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Mass shots in El Paso (Texas) and Dayton (Ohio) once again shed light on the importance of the Supreme Court's landmark decision in 2008, District of Columbia v. Heller, stating that the second amendment protected the right of an individual to own a firearm.
In his written speech for the Conservative majority of the Court, Justice Antonin Scalia ruled that a gun law prohibiting handguns in Washington, DC, requiring that even legal weapons in a home be kept non-functional , violated the second amendment.
This part of Scalia's decision is clear, but what she failed to acknowledge, as her critics have pointed out, is how the second amendment providing for the control of slaves played a crucial role in the desire to the influence of the state of Virginia to ratify the treaty. Constitution.
At first glance, the second amendment seems simple. In 27 words, she says, "A well-regulated militia, necessary for the security of a free state, must not violate the right of peoples to keep and bear arms." But problems of interpretation arise when we try to determine the relationship between the two parts of the second amendment.
In its decision, Scalia was keen to divide the amendment into two separate parts. He asserted that, although the militia clause or the "preliminary" clause introduced the second amendment, it did not restrict the assertion of the right to carry arms by the second clause or "device". "The first does not limit the last grammatically, but rather announces a goal," observed Scalia about to conclude: "By collecting all these textual elements, we find that they guarantee the individual right to own and wear weapons in case of confrontation. "
By contrast, James Madison, the author of the Second Amendment, wrote his amendment with his steadfastly turned toward practical politics. He introduced this amendment during the debate on Virginia's ratification of the Constitution, as the Governor of Virginia, Patrick Henry, saw the danger lurking in Article 1, Section 8, of the Constitution, which gives Congress power to plan, organize, arm and discipline the militia.
Henry feared that without control, Congress could undermine the ability of militias in Virginia and elsewhere in the south to suppress slave uprisings and pursue escaped slaves.
The question of the militia was important enough that Henry could see it as a ground of opposition to the ratification of the Constitution. The positive power that Congress had over militias, according to Henry, could easily be turned into restrictive power. "By this gentleman, you see that their control over our best defense is unlimited," warned Henry.
"Only the white men of the Virginia militia had the right to bear arms."
It took two projects in Madison to incorporate the second amendment to the phrase that it is today. His careful wording was deliberate. By connecting the militias with the right to bear arms rather than simply defending the right to bear arms, Madison, himself a slave carrier, was addressing the power of his state. Only the white men of the Virginia militia had the right to bear arms. Free African Americans could join the militia, but they were limited to drummers or buglers.
Former Pennsylvania Attorney General Anthony F. Picadio, a former attorney general of Pennsylvania, argued persuasively for the second amendment in the first debate on slave control and militia. Pennsylvania Bar Quarterly and Transpartisan Review and by law professor Carl T. Bogus in the University of California, Davis Law Review 1998.
In addition to books such as the 2003 study by Professor Sally Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinasand the 2014 story of Brennan Center for Justice President Michael Waldman, The second amendment: a biography, there are also strong editorials on this subject.
But the link between slave control and the second amendment has not become a feature of today's debate on gun control. This is good news for Senate Majority Leader Mitch McConnell and President Donald Trump.
They should not, however, breathe easily. In the end, Justice Scalia never saw his majority opinion in the District of Columbia v. Heller eliminate the government's ability to regulate firearms. "Although we were not doing an exhaustive historical analysis of the whole scope of the Second Amendment today," Scalia warned, "nothing in our view should be taken to question long-standing bans. concerning the possession of firearms by criminals and mentally ill persons, or laws prohibiting the carrying of firearms in sensitive places such as schools or government buildings or laws imposing conditions and qualifications to the commercial sale of weapons. "
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