What America would look like if it didn't change their Amendments

[jimmy the one]

11. criticism of 2008 heller decision by british scholars

Soph, I just thought, if you are from Ireland the glorious rev might not be your cup o' tea, oh well.
Thanks raging moderate, for the kind words!

The following was written about 2011/12 following both the 2008 heller decision (federal) & 2011 mcdonald decision (applying to cities) by a consortium of approx 21 british scholars (most from america tho) regarding scalia's supreme court ruling (added emphasis mine):

Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law. The depth of knowledge they bring to the Court’s inquiry in this case is reflected in biographical information provided in accompanying Appendix.

BRIEF FOR ENGLISH/EARLY AMERICAN HISTORIANS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

I. THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION ..The [US supreme] Court “throughout its history has freely exercised its power to reexamine the [historical] basis of constitutional decisions.”
II. THE ALLOWANCE OF A RIGHT TO “HAVE ARMS” SET FORTH IN THE 1689 DECLARATION OF RIGHTS WAS THE PRECURSOR TO THE SECOND AMENDMENT.

Amici simply urge that the Court base its decision on a well informed study of historical facts, which demonstrates that armed self-defense of the home by individuals acting for private interests was not the right enshrined in the Second Amendment

In {DC} v. Heller (2008), the {US Supreme} Court examined the English Declaration of Rights of 1689, correctly finding that the right to “have arms” in Article VII is the basis of the right enshrined in the Second Amendment.
The Court also correctly recognized that the Second Amendment right to bear arms was an individual right to have and use arms for “self preservation and defense” as in its English predecessor.
However, contrary to discredited scholarship {to wit Joyce Malcolm} upon which Heller relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm. Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our {british} nation’s tradition, and should not be incorporated as against the states by the 14th Amendment.

The “have arms” provision in the English Declaration of Rights, which was later codified as the Bill of Rights, provided two protections to the individual.
First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.

In no part of his Commentaries does Blackstone link the right of personal security with the possession of arms, nor does he cite the Declaration of Rights’ “have arms” provision in his discussion of personal security
.
... In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point. ...Amici, based on a wealth of scholarship, disagree with Malcolm’s conclusions. Contrary to Malcolm’s view, the “have arms” provision was the result of a political dispute over whether ultimate control over the militia

They {America's founding fathers} also borrowed the Second Amendment’s preamble from England’s militia laws, for the Second Amendment’s “well regulated militia” language was inspired by the preamble of the 1757 Militia Act, which stated, “Whereas a well-ordered and well-disciplined Militia is essentially necessary to the Safety, Peace and Prosperity of this Kingdom.

The {supreme} Court “throughout its history has freely exercised its power to reexamine the [historical] basis of constitutional decisions.” That the Heller decision is recent only weighs in favor of quick action by the Court to correct its error of historical interpretation

CONCLUSION Based on the foregoing, we ask that the Court correct its view of the historical background of the Second Amendment as set forth in Heller.
https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf