The State of the Second Amendment

The recent tragedy in Isla Vista has once again brought the Second Amendment into focus and people on both sides of the gun control argument are revealing an astonishing ignorance of both the Second Amendment and the very workings of our government.   The constitution is not like the bible, it is a living document where it’s creators allowed for it to change with the times and situations.

It has been the law of the land since 1803 (Marbury v. Madison) that the Constitution says basically what the Supreme Court says it does.    In the words of then Chief Justice James Marshall :   “It is emphatically the province of the judicial department to say what the law is”  bill of rightsTo paraphrase Donald Rumsfeld: “you deal with the Constitution you have, rather than the one you’d like.”   The entire text of the Second Amendment reads:
“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.”

Those 27 words have generated considerably more words  concerning what those words actually mean.  For citizens, the most important would be those of the US Supreme Court in the landmark cases District of Columbia v. Heller and McDonald v. Chicago.   Heller, in 2008, ruled that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense.   McDonald, in 2010, ruled that the 14th amendment limited the power of the City of Chicago to outlaw possession of handguns by private citizens.

Those rulings are now part of the law of the land, and will be until modified by a Constitutional Amendment or overturned by a future Supreme Court.

I still see many of my fellow liberals bringing up the concept of a “well regulated militia” as if the fact that they disagree with the court’s ruling should have any bearing.   It would, if one were proposing an Amendment to the Constitution, or were hoping that somehow a more liberal Supreme Court might appear in the near future: neither of which is likely to happen in todays world.  We need to stop flogging a horse that died several years ago.

On the other side, conservatives recite the right of the people to keep and bear arms, shall not be infringed clause like it somehow confers the absolute right of ownership of any kind of firearm for any reason to be used in any way possible with no restrictions in any way whatsoever.

This is the view propagated by the NRA, and grandstanding, constitutionally ignorant individuals such as “Joe the Plumber”.   In the course of the the “gun control” debate this has lead to an “all or nothing” stance that insists that any regulation is “unconstitutional, an infringement on our second amendment rights” and a step down a slippery slope.   They would like to you believe that any law short of an Amendment to the Constitution would be unconstitutional and those who propose such laws don’t respect the second amendment.

Although the Heller decision did rule that the second amendment insured that private individuals have the right to own handguns, it stopped far short of conferring any sort of “absolute right” of gun ownership.   The following are quotes directly from the text of the Heller decision:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

” Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

(The darker italics are mine)

Conservatives are certainly free to disagree with the above, but it should be obvious that the absolute right of gun ownership they hold so dear is but a fantasy.   The Heller and McDonald opinions are as radical as they come in terms of Second Amendment Supreme Court rulings: they overturned 200 years of established jurisprudence that held the second amendment applied only for purposes of establishing a militia.

The fact they stopped short from banning all restrictions on regulation of firearms, as well as making a point of mentioning existing regulations that are reasonable, should convey something. In any case, if you disagree with this ruling on a basis steeped in conservative philosophy, your remedies are the same as us liberals have: a Constitutional Amendment, or an even more conservative Supreme Court.

We’ve already started down the slippery slope.  It has long been established that certain weapons can be prohibited.   Few would argue that a private citizen has the right to own a tank, a flame thrower or a rocket launcher, or even a fully automatic machine gun.  We agree that not everyone has the right to own a gun, and that not allowing just anyone to sell them in any way they’d like are reasonable .     We’ve already drawn the line, we’re just arguing over where it should be.

We need to be able to have a public debate over how we regulate firearms in this country.   We won’t get that as long as one, loud, well funded group, starts screaming “They’ll take my gun from me over my dead body!”  at the mere mention of any regulation whatsoever, no matter how reasonable they may be.

We don’t need to go back and parse the sentences of the 2nd amendment and decide exactly what James Madison might have meant: there’s little point in deciding what the founders might have made of a modern assault rifle.

Which brings me to my point.    The gun lobby has hijacked the narrative by basing it’s arguments on a version of the second amendment that actually doesn’t exist.     They are entitled to their own opinion, but not their own facts. And the fact is the Second Amendment says what the rulings in the Heller and McDonald cases say it does.  Any legislation that involves the regulation of firearms will need to satisfy those two rulings: not the opinion of the NRA.

As long as they can force the discussion into an all or nothing, black and white, “either we allow all guns or ban them entirely” realm where the entire country is now subject to a tyrannical overlord if we even consider background checks prior to purchase of an assault rifle, we have no chance of coming to a reasonable conclusion, much less have a reasoned discussion.


Author: fauxsuper

Guitarist since 1964, motorized vehicle enthusist all my life, Married with two step children. Born and rasied in Lebanon, Ore.

1 thought on “The State of the Second Amendment”

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