The Second Amendment is debated like no other part of the Constitution. The idea that some people can look at “the people’s right to keep and bear arms shall not be infringed” and think they have carte blanche to restrict guns is mindboggling to me.
And yet, here we are.
What’s more, some will trip over themselves to try and misrepresent reality to push that narrative. It’s rather painful to see, especially since many people are unaware of the truth and will accept what they’re told because they don’t know any better.
Take this piece that originally appeared at Salon:
There’s been another mass shooting, this time in Jacksonville, Florida.
Like rapid fire bullets from an AK-47, American gun carnage is set to repeat. Random shooters can fell anyone, anywhere: at church, at school, at the Dollar General. Mass shootings occur with such frequency that Americans seem inured to a brutal reality where the unstable and aggrieved — and the racist —can buy a gun as easily as a pair of shoes.
Well, let me see for a moment…I’ve bought shoes online and had them shipped to my house, something I can’t actually do with guns. I’ve also walked into the store and bought them and not had to show ID or undergo a background check. I also don’t have to worry about whether my shoes are legal in another state if I decide to move.
But other than all that, it’s exactly as easy as buying a pair of shoes.
Alleged “originalists” on today’s Supreme Court, who claim to hew to the original meaning of the Constitution, did an about face on the 2nd Amendment. (Disclaimer, my federal litigation practice focuses on 1st and 14th Amendments, I’ve never tried a 2nd Amendment case.) As Chief Justice Warren Burger observed:
The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime… The real purpose of the Second Amendment was to ensure that state armies, the militia, would be maintained for the defense of the state… The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
This view, shared by many Constitutional law scholars, holds that an unbought and un-lobbied interpretation of the 2nd A flows squarely from its historical context: In 1775, King George declared that the American colonies were in a state of rebellion. Eager to defeat, tax and control them while extracting their natural resources, the king sent bayonet-armed soldiers to occupy the 13 colonies. The British army quartered itself in the colonists’ meager homes, slept in their beds, burned their firewood, ate their scarce food, and confiscated their guns so they couldn’t form a militia to fight back.
Note the phrase “unbought and un-lobbied interpretation” there.
This is an attempt to discredit literally anyone who disagrees. Only those who agree with Burger are pure while all others are shills trying to do what their masters at the NRA tell them to do.
However, while many constitutional law scholars may hold that belief, the truth is that there are many others who do not. Those others think the right to own guns was correctly decided in Heller.
What’s more, the words of the past make it clear that this is not necessarily an accurate assessment.
It's so amusing reading old history/law texts that clearly talk about the right to bear arms as an individual right, considering the antigun side pretends the 2A is a "militia right" and Scalia made up the individual right in Heller. This is from William Rawle. pic.twitter.com/clzWCwyAE4
— Kostas Moros (@MorosKostas) May 9, 2022
I know I’ve shared this X thread before, even back when X was still called Twitter, but it’s relevant so I’m going to include it.
It’s very clear that at the time of the Second Amendment’s creation, it had nothing at all to do with the militia and everything to do with an individual’s right to keep and bear arms.
Our Founding Fathers had just overthrown a tyrannical master and had no interest in laying the groundwork for another. As such, they ratified the Bill of Rights to enshrine certain rights that they thought were important for keeping this nation from becoming such a state.
The right to keep and bear guns isn’t about the militia because they had concerns that individuals may need to form militias independent of the government itself.
Honestly, at this point, I’ve run on for quite some time on just the first bit of this op-ed, and we can see why the author hasn’t litigated a single Second Amendment case. It’s because she clearly doesn’t understand the text or the history.
Instead, she found a quote she thought would stir people who don’t know any better–after all, Burger was a Republican–and tortures history and reality to try and push the anti-gun agenda.
The problem is that it doesn’t really matter what Burger thought back in the day or what the author thinks now. Neither are currently sitting on the Supreme Court, where they’ve ruled multiple times that it is, in fact, an individual right, and pretending otherwise isn’t changing anything.
The fact that she goes on to basically say that because a racist in Jacksonville did something, then defending the Second Amendment is racist.
Which is all the reason to dismiss her as a serious human being you need.
