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Posted by / 10-Nov-2017 02:56

It is a constitutional debate that has taken place largely in the absence of Supreme Court opinion.[3] It is a historical controversy where the framers' intentions have best been gleaned from indirect rather than direct evidence.[4] It is a scholarly debate that members of the academy have been until recently somewhat reluctant to join,[5] leaving the field to independent scholars primarily concerned with the modern gun control controversy.[6] In short, the Second Amendment is an arena of constitutional jurisprudence that still awaits its philosopher.

The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms.

Professional police forces and a standing military establishment assisted by semi-professional auxiliaries--the reserves and the National Guard--have largely assumed the roles of public protection and national security.

It is possible that the concept of a militia of the armed citizenry has been largely mooted by social change.

If the Second Amendment was designed to ensure the existence of somewhat independent state militias immune from federal encroachment, then the question arises to what extent states are free to define militia membership.

Could a state include as members of its militia all adult citizens, thus permitting them an exemption from federal firearms restrictions?

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.

This debate has raised often profound questions, but questions generally treated hastily, if at all, by the community of constitutional scholars.[14] For example, if one accepts the collective rights view of the Amendment, serious questions arise concerning whether the federal government's integration of the National Guard into the Army and, later, the Air Force have not in all but name destroyed the very institutional independence of the militia that is at the heart of what the collective rights theorists see as the framers' intentions.[15] Even the gun control debate is not completely resolved by an acceptance of the collective rights theory.

It poses important questions about notions of the living Constitution, and to what extent that doctrine can be used to limit as well as extend rights.

It also poses important questions about social stratification, cultural bias, and constitutional interpretation.

Where should the proper lines be drawn with respect to modern firearms, all of which employ technologies largely unimagined by the framers?

[25] Societal, as well as technological, changes raise questions for advocates of the individual rights view of the Second Amendment.

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At the heart of the individual rights view is the contention that the framers of the Second Amendment intended to protect the right to bear arms for two related purposes.

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