The gun debate, as it’s generally called, hinges on the Second Amendment. Without it, there’s little constitutional argument against gun control. While gun rights would remain human rights–the Constitution doesn’t establish rights, but protects them–the arguments against infringement would be quite different.
And, frankly, we’d have less leg to stand on in the courts.
However, it seems ABC News thinks the importance of the Second Amendment to these discussions is overstated.
In the bitter debate over gun control, battle lines are often drawn around the Second Amendment, with many in favor of gun rights pointing to it as the source of their constitutional authority to bear arms, and some in favor of tighter gun control disagreeing with that interpretation.
But if the purpose of the debate is to reduce the tragic human toll of gun violence, the focus on Second Amendment is often misplaced, according to many experts on guns and the Constitution.
Joseph Blocher, professor of law and co-director of the Center for Firearms Law at Duke Law School, described the patchwork of state laws that exists across the country as a “buffer zone” for the Second Amendment.
“Before you even get to the Constitution, there’s a huge array of other laws super protecting the right to keep and bear arms,” Blocher said. “This collection of laws is giving individuals lots of protection for gun-related activity that the Second Amendment would not necessarily require, and certainly, and in almost all of these instances, that no lower court has said the Second Amendment would require.”
Adam Winkler, a professor of law at the UCLA School of Law, also said the Second Amendment is losing its legal relevance in distinguishing lawful policies from unlawful ones as the gap between what he calls the “judicial Second Amendment” and the “aspirational Second Amendment” widens.
Winkler defines the “judicial Second Amendment” as how courts interpret the constitutional provision in their decisions, and the “aspirational Second Amendment” as how the amendment is used in political dialogue. The latter is “far more hostile to gun laws than the judicial one,” he said — and also more prevalent.
I’m sorry, but what?
Now, I agree with Blocher to some degree. He makes a valid point about how state laws do a lot to protect the Second Amendment and do so well beyond what the courts often require. That’s fair, though I’d argue it’s irrelevant.
But Winkler’s comment about there basically being “two” Second Amendments is beyond idiotic.
Yes, the courts have historically taken a different stance than politicians on the Second Amendment, but that doesn’t mean anything except someone is quite wrong about what the amendment actually means.
And yeah, it’s the courts.
The text of the Second Amendment is quite plain. It says the right to keep and bear arms shall not be infringed. Nothing else in that amendment counters that, even if it were a collective right as some argue–including the video that played on the above-linked article. It doesn’t matter if it’s an individual or collective right because that right still cannot be lawfully infringed upon.
(For the record, the collective right argument is the most idiotic I’ve seen before this “aspirational Second Amendment” nonsense.)
While it’s entirely possible for someone to get it wrong, the implication that there are two different versions is nothing more than an attempt to pretend current arguments have nothing to do with that quite plain text.
Yeah, I find that offensive.
The implication is that we’re misrepresenting the Second Amendment in an attempt to win the argument, not that we’re taking issue with what the courts have found and are trying to correct the errors of the past with regard to our rights.
The Second Amendment isn’t overstated. It’s essential.