The text of the Second Amendment isn't that long. It's a single sentence that, at least at first glance, seems pretty damn clear. Our Founding Fathers believed the best defense against tyranny, either foreign or domestic, was a well-armed populace. They didn't want the right to keep and bear arms messed with.
But an amazing number of people look at that text and somehow get something completely different out of it.
They're absolutely convinced that it means our Founding Fathers not just wanted to allow gun control, but demanded it, even as they passed absolutely none during their lives.
Weird, right?
I came across an example earlier today that I kind of felt obligated to smack around a bit.
MYTH: The 2nd Amendment gives individuals the right to own firearms.
FACT: The Supreme Court ruled that the 2nd Amendment gives individuals the right to own firearms.
This is a problem.
Yeah, you know you're going to get something special when we get this right off the top.
The author goes on to talk about public support for gun control, then tries to argue that most gun rights supporters who see the Second Amendment as absolute would see other rights in the same light. I think he'd be wrong on that, of course, especially in this day and age when so many gun control proponents also want to regulate speech, religion, and every other aspect of our lives.
My argument today is that the 2nd Amendment needs to be interpreted in a much more rational fashion and probably closer to as it was written 1791. There were cannons in 1791 for crying out loud and no one takes the argument that the framers meant for individuals to own cannons back then seriously. Nor should we take seriously that individuals today have the right to own the current iteration of deadly howitzers. Since there are limits on this “right to bear arms” we need to talk about WHY the 2nd Amendment guides those limits. Not only that, the American legal community should boldly propose this interpretation and teach it in law schools and make these arguments in court. Politicians should appoint like-minded attorneys to judgeships holding this interpretation and reverse the perverse world the gun-nuts have created. Stare decisis be damned. Too many legal institutions might teach how the 2nd Amendment has been interpreted, but they need to teach how it should be interpreted.
Why would no one take the argument that the framers meant for individuals to own cannons back then seriously? I ask because people did it. They did it all the time. In fact, letters of marque being included suggests precisely that, since a letter of marque is meaningless for an unarmed ship and it only applies to privately owned ships, as government-owned, armed ships are called "a navy."
This idea that the argument shouldn't be taken seriously flies completely in the face of historical fact. Private parties owned cannons. The Founding Fathers knew this, and not only did nothing about it, but included a way to allow these armed vessels to be used to defend American interests.
Then again, considering he's arguing for revisionist legal history by claiming he knows how the Second Amendment should be interpreted, rather than the legions of legal scholars who disagree with him, well, what can you do? Clearly, he's someone with a penchant for ignoring reality as it is rather than how he wants it to be.
Here is the interpretation of the 2nd Amendment we should go with: The 2nd Amendment to the US Constitution is ARGUMENTATIVE. It begs that the ownership and possession of weapons be well-regulated and conditional. If you want to own “Arms,” you must be a member of a well regulated militia. Such regulations can:
- Define what “Militia” means to ensure professionalism, competence, and accountability
- Compel national service in a Militia as a condition of ownership
- Limit the types of weaponry a person can own and carry
- Mandate licensure and registration of weaponry
- The list goes on.
Let’s start with a plain reading of the text:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That’s it. 27 words. 3 commas, 1 period, and it’s not even a coherent, complete sentence. I forgive the writers who didn’t have chatGPT to write it for them. But clearly the most important part is the first clause:
A WELL REGULATED MILITIA
Ah, yes, this bit.
Of course, this individual--who dares call his own interpretation "originalism" hasn't gotten the memo that the term "well regualted" meant, at the time, properly functioning.
As he later goes on to claim that "shall not be infringed" is vague, I think his understanding of the English language is somewhere just south of an amoeba's.
There is absolutely no world in which the phrase "the right of the people" would mean anything at all beyond the right of the people. At no other point does the Constitution use "the people" or some close variation to mean anything but an individual right. He explicitly ignores that fact and tries to argue that the fact that it doesn't say "individual" in any way means it's not an individual right.
In that case, he shouldn't object to the Fourth Amendment not applying to him, personally.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Or what about rights not specifically enumerated in the Constitution? I'm sure the author has some fondness for rights that aren't expressly protected to some degree or another.
Yet that's not an individual right, according to this "reasoning," as the text of the Ninth Amendment reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Or, since he claims "shall not be infringed" is vague and that if the Founding Fathers wanted no gun control, they should have phrased it as they did in the First Amendment, let's look at the First Amendment for a second.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Now, if "the right of the people" means some collective right, then why doesn't it mean that anywhere else?
So now, with that covered, let's understand the absolute stupidity of trying to say that "well regulated" expressly means gun control, while also having "shall not be infringed," that, contrary to the claims he makes, is pretty damn clear.
But if "well regulated" means properly functioning, then "shall not be infringed" makes perfect sense.
Now, this brainiac isn't likely to sway public opinion one way or another. He's some rando at The Daily Kos, which is still a thing, shockingly. However, a lot of people still "think" this sort of thing.
With regard to the much earlier claim that this is somehow new, something the gun lobby just cooked up, let me leave you with this rather lengthy thread from Second Amendment attorney Kostas Moros absolutely debunking that nonsense.
This thread covers 19th century views on the Second Amendment. It's a revised version of a prior thread, with the biggest change being the links to most of the sources, as well as some corrected typos.
— Kostas Moros (@MorosKostas) April 10, 2023
This first excerpt is from William Rawle.https://t.co/Zyy0zgajy9 pic.twitter.com/FIpWcfbQJ9
Go and read the rest at your leisure.
Suffice it to say, this supposed argument being made is as asinine as anything else being peddled by anti-gunners.
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