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The Second Amendment is — and has always been — a hot mess

People like to throw around the idea that they know what the framers of the Constitution “intended.” They don’t. 

AR-15 rifles are displayed for sale at the Guntoberfest gun show in Oaks, Pennsylvania, in 2017.
REUTERS/Joshua Roberts

People like to throw around the idea that they know what the framers of the Constitution “intended.” It’s often false and silly. In many important ways, the framers “intentions” are either unknowable or so far removed from 21st century reality that they border on irrelevant (unless you think they help you win your argument, in which case they are clearly knowable and crisply relevant). But it’s part of our national lay American religion, of which our Constitution serves as the bible.

Still, feeling bound by these imagined “intentions of the Framers” is a big part of the gun control argument, with which the nation is currently, and very understandably obsessed in the aftermath of the Florida massacre.

It’s quite unclear whether our Congress or our president have the good sense or the nerve (considering their reliance on the gun lobby) to do much of anything legislatively new or important to regulate access to assault weapons. 

But if such legislation ever acquired some momentum, it would eventually have to face the argument that anything effective that might be done would violate the Second Amendment’s so-called right to bear arms.

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When I refer to it as a “so-called right,” I am not just venting. The Second Amendment to the Constitution — which, ripped from its historical context, is incoherent — is quite obviously and explicitly derived from a system of state militias that existed in the 1780s that has little or no relevance to America in the 2010s. It was written in a world where weapons technology mostly stopped at swords, daggers, muskets and cannons.

I know I’m biased, but I think I might be less biased than those who believe that authors and ratifiers of the Second Amendment “intended” for assault rifles to be available to all, and that even a souped-up background check to screen out the dangerously mentally ill is too much of an infringement.

I’m not an expert on guns, but have written a fair bit about the Constitution, a habit I find very rewarding and often full of surprises. In fact, thanks to my MinnPost gig, I was able to write a three-part series in 2013 on what I called “the Second Amendment Mess.” It was focused on the Supreme Court history of the Second Amendment, which is much briefer and mostly more recent than you might suspect.

I’ll link to the three parts below. I pretty much guarantee you’ll find some surprises in it (unless you read it then and remember what it said, but I just reread it and found plenty of surprises, and I wrote the darn thing).

I’ll just mention a few of the biggest points:

Part one, “The Second Amendment Is a Mess,” focused on the origins of the amendment, and on this fairly amazing fact: The idea that the Second guarantees individual ownership of modern weapons was never discovered by the Supreme Court until 2008. 

“The Second Amendment arose at time when most its key words and phrases meant something quite different from what they would mean today and from circumstances also fundamentally different — so different that its modern meaning is almost completely detached from its original purpose.

“For two centuries, the Second Amendment was pretty much a dead letter. States and the federal government adopted various gun-control measures. None were ever struck down on Second Amendment grounds. Until, that is, starting in 2008, when two recent 5-4 Supreme Court rulings stirred up such a Second Amendment mess that it is perfectly unclear what the Court’s conservative majority might eventually decide would violate the Second Amendment.”

Part two, “Gun Rights in the 1780s and Today,” includes one my favorite facts: that Elbridge Gerry of Massachusetts, who was a delegate to the Constitutional Convention of 1787 and was a member of the first Congress (which proposed the Second Amendment and the rest of the Bill of Rights), favored the Second Amendment because he believed that the collection of “well-regulated” state militias would it make unnecessary for the United States to have a federal military at all.

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If you want to get into the minds of the framers and understand their “original intent” Gerry explained it thus: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.”

As I wrote in Part Two:

Tune into this line of thinking and you begin to understand why the constitutional language that gave the national government substantial power over the state militias — including, perhaps, the power to disarm them, as anti-federalist Patrick Henry suggested at the Virginia ratifying convention — was alarming.

On the contemporary far right, you can occasionally hear talk that resonates with the ideas above. But to most 21st century Americans, it borders on crazy talk for several reasons. The United States has a standing Army (and Navy, Air Force and Marine Corps) of magnitudes and capabilities far beyond anything the founding generation could have imagined.

It operates a global network of military bases scattered around the world. The United States is in a state of essentially permanent undeclared war with various nations, elements and what our presidents like to call “regimes,” which is a euphemism for governments we don’t like. Some of us are alarmed by this development but not because we fear that this standing military might be used against the states that make up the U.S.A.

Part three, “Trouble ahead: Justices’ rulings on gun rights raise thorny questions,” emphasized a fact I mentioned above: the idea that the Second Amendment guarantees an individual right of Americans to own guns, and even assault weapons and perhaps individual nukes (kidding there, I hope, but we do call them nuclear “arms”) is very new as a matter of Supreme Court interpretation.

Warren Burger, a Republican appointee who was chief justice from 1969 to 1986, and who so loved the Constitution that he retired in 1986 to chair the commission that celebrated the Constitution’s 1987 bicentennial, gave an interview on the PBS “Newshour” in 1991 in which he said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public.”

Burger believed that the Second Amendment guaranteed the right of states, through their militias, to arm those militias. The “fraud,” in his view, was the National Rifle Association’s campaign to interpret the amendment as a guarantee of each individual citizen’s right to arm himself.

Burger wasn’t rebelling against established jurisprudence. Not even slightly. He was accusing the NRA of making up the notion that gun ownership was an individual right. The Supreme Court had, in 1939’s “U.S. vs. Jack Miller” ruling, upheld the constitutionality of the “National Firearms Act,” which banned several categories of weapons.

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When Burger made his 1991 statement about the fraudulence of the individual, non-militia, right to own guns, individuals were barred by law from owning even handguns in the District of Columbia, and many other states put tight regulations on individual gun ownership. The D.C. ban led to a constitutional challenge against the power of D.C. (and states and cities) to regulate individual gun ownership by a D.C. resident named Heller. The Heller challenge made it to the Supreme Court.

In the high court’s 2008 ruling in “Heller,” Justice Anton Scalia declared that there is an individual right to possess arms.

That’s how recent the individual, non-militia-related, right to own guns is, and it was approved by an underwhelming 5-4 Supreme Court majority. The full article includes some great back and forth between Scalia and Justice John Paul Stevens. It’s pretty strong stuff. Since I’m biased, I’ll just give you Stevens’ summary of his argument, which is consistent with everything above.

Stevens, for the four dissenters, wrote:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.