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Going off the rails with the Second Amendment

A four-part series considering the development of the interpretation of the Second Amendment.

What kind of right does the Second Amendment actually guarantee and to whom?
REUTERS/Joshua Lott

Blog Cabin contributor Paul Udstrand has started publishing on his blog, Thoughtful Bastards, a six-part series on the interpretation of the Second Amendment especially as it relates to permitting private possession of semi-automatic assault weapons. Parts 1–4, excerpted below (click the subheads to go to the full piece) consider the development of the interprtetation of the Second Amendment. Parts 5 and 6, which are forthcoming (follow Paul’s blog for updates), will discuss the particular problem of assault weapons and the need for an effective ban on their sale.

Part 1: How did the Second Amendment get written and what is a militia?

Here’s what you need to know about the Second Amendment in a nutshell: The Second Amendment does not guarantee an individual right to own a gun. The Second Amendment is about arming well organized militias for the common defense and It is not about individual self-defense.

Technically what I just said isn’t true because a handful of Supreme Court rulings establish that the Second Amendment actually does refer to and individual right to own a gun and personal self defense.  Before we talk about the rulings themselves , we need discuss the historical myths upon which those rulings have been made.

Part 2: What does the Second Amendment really say about keeping and bearing arms?

In a 1995 article for the New York Review of Books, the Pulitzer Prize winning historian Gary Wills examined the body of work that a number of guns rights activists had produced throughout the early and mid-90s regarding the Second Amendment. Wills produced a short and concise historical account that I’ll draw upon here.

The term “Arms” did not and does not today mean “guns”. The term: “arms” is a reference to military weaponry that may include, but is not limited to guns. Note that one does not buy a hunting rifle from an “arms dealer”, one buys a hunting rifle at a gun shop.  Arms dealers sell everything from land mines to attack aircraft, gun dealers do not.  Then and now the term: “arms” was a reference to a military arsenal.  As we’ll see later, the problem with interpreting this as an individual right is that eventually you have to explain why this right would be limited to guns? Military weaponry or “arms” at the time were not limited to guns. Military arsenals during war of 1812 were comprised of cannons, rockets, warships, swords, etc.  If the Amendment means to guarantee the individual right to have military weapons why doesn’t it guarantee you right to have a rocket launcher or a box of hand grenades?

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Part 3The courts take the Second Amendment in a different direction

Contrary to earlier rulings, Miller ties the individual right to have a gun to membership in a militia. It then goes on to rule that only military weapons could be protected by the Second Amendment. Since the military didn’t use sawed off shotguns, they are not protected by the Second Amendment. Finally the court constructed an incoherent definition of militias completely at odds with all historical precedent.

Remember this was 1939, what kind of military weapons were in “common” use at the time and by whom? The constitution clearly lays national defense upon the federal government yet Miller suggests that the able bodied are supposed to defend the country with their own weapons at their own personal expense? The ruling is even more bizarre that it appears at first.  We’re told that National Firearms Act (NFA) prohibition of sawed off shotguns is constitutional because such guns are not in common use by the military. However, machines and silencers are also prohibited by the National Firearms Act and they are and were in use by the military. Are we to conclude that the part of the NFA that bans shotguns is constitutional but other parts of the law are not?

Part 4‘Originialist’ with no shame, the Court re-writes the Second Amendment

This ruling leaves no myth or misconstrued history untouched. After declaring that reference to militias in the Second Amendment is basically irrelevant (A complete departure from precedent as well as common sense), they go on to create another category of “traditionally lawful purposes” out of whole cloth. This creates a bizarre and circular standard whereby the actual existence of a militia is irrelevant but the use of guns used for traditional and lawful purposes constitutes militia activity. Then we get a reference to the dubious theory of insurrectionism followed by a reference to the non-existent  “ancient” right keep and bear arms. Finally the majority simply declare that their interpretation is based in uncontested historical scholarship and is otherwise unavoidable to the mind of any right thinking person. If it weren’t a Supreme Court ruling this would laughable.  As we’ve seen, their history is not only contested, it fails any attempt at honest scrutiny.

The Majorities attempts to clarify their position only makes things worse.

This post was written by Paul Udstrand and originally published on Thoughtful Bastards.

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