By William Sullivan
A 2012 Democrat Party Platform statement reads:
“We recognize that the individual right to bear arms is an important part of the American tradition, and we will preserve Americans’ Second Amendment right to own and use firearms.”
Yet the very next sentence reads:
“We believe that the right to own firearms is subject to reasonable regulation.”
The two statements in juxtaposition should represent an incomprehensible logical fallacy, so much so that it can only be understood that one of those statements is either a willfully stated falsehood, or evidence of a complete inability to understand what the Second Amendment protects.
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.
For the record, the Amendment remains unabridged in the Constitution. And nowhere within, you’ll notice, does it say that “the right of the people to keep and bear Arms” is “subject to reasonable regulation” by the federal government.
Yet the Democratic platform statement goes on to call for the reinstatement of a federal “assault weapons ban,” as Democrats today are currently demanding in the wake of the Parkland massacre. How could it possibly be that a federal “assault weapons ban” upon all law-abiding Americans doesn’t run afoul of the Second Amendment?
Precedent, the left will say. There has already been a federal assault weapons ban, issued in 1994 and lifted in 2004. But precedent doesn’t supplant the Second Amendment.
There is actually a long history of fallacious assumptions as to the meaning of the Second Amendment, despite the fact that it’s difficult to imagine how its intent could be misconstrued.
The first Americans believed that the Amendment was, given that the Constitution enumerated the extent and limitations of federal government authority, a prohibition that refers only to the federal government.
As such, states have issued gun regulations since our nation’s early history, though it had always been understood that the federal government had no such right. It could be reasonably argued that this was a specious reading of the Amendment, even then. For example, the First Amendment clearly defines that “Congress shall make no law” respecting religion, freedom of expression, etc. There is no such specificity in the Second Amendment. I, for one, do not believe the framers were such linguistic hacks that they neglected to add “by Congress” at the end of the Second Amendment to similarly clarify its intent. The Amendment, therefore, likely enumerated a holistic negative right (as the Supreme Court now surmises, there’ll be more evidence of this in a moment).
However, this interpretation persisted until the first federal gun law was instituted in 1934 – the National Firearms Act. The constitutionality of a federal gun law was addressed in United States v. Miller in 1939. The U.S. attorneys argued that the Second Amendment only applied to “military-type weapons” suitable for use in an organized militia. Since a sawed-off shotgun (the subject of the case) was not used for military purposes, Justice McReynolds opined, “we cannot say that the Second Amendment guarantees a right to keep and bear such an instrument.”
It is such a curious thing that the very first federal gun law, without which there would have been no precedent for any of those that followed, was largely upheld on the grounds that only “military-type weapons” were protected for their supposed utility in a militia, while today, the argument in favor of expanded federal gun laws is that only “military-type weapons” suitable for a modern militia are to be outlawed altogether.
Nonetheless, this began the use of the boondoggle around the “militia preface” to justify the federal government’s supposed “lawful” infringement upon Americans’ right to keep and bear arms.
This, of course, has always been nonsense of the highest order. There are myriad logical obstacles in defending this “only weapons for use in a militia are protected” position, and the language of the Amendment itself is no exception. The Amendment doesn’t protect the rights of “the militia,” but the rights of “the people.” As a Nelson K. Lund later observes, in a brilliant dissection of the language of the Second Amendment:
“The importance of this can be illustrated with a simple example. Suppose the Constitution offered:
“A well-Educated electorate, being necessary to self-governance in a free state, the right of the people to keep and read books, shall not be infringed.”
Who could possibly take this as evidence that the federal government has the lawful right to deny books to citizens, or the right to seize and incinerate them?
Thankfully, the Supreme Court has since nullified the nonsensical “militia” boondoggle. There are two recent examples of this.
District of Columbia v. Heller in 2008 ruled that the D.C. ban on handguns was unconstitutional on the grounds that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within a home.”
McDonald v. City of Chicago in 2010 essentially affirmed Heller, ruling that the Second Amendment applied both at the federal and state level in accordance with the “doctrine of incorporation,” and that individuals have the right to possess and use firearms for lawful purposes, particularly self-defense, and that this is fundamental to the “American scheme of ordered liberty and system of justice.”
So, the first major federal gun law was largely upheld on the grounds of a now-discredited and highly dubious assertion about it only protecting militias, and, again, the Second Amendment remains unabridged in the Constitution. Current judicial precedent suggests that the Amendment defines a holistic negative right for law-abiding citizens, upon which even states cannot infringe.
Yet, after mass shootings in recent years, gun control advocates are clamoring for more and more federal gun laws. And Democrats, our president, and some Republicans in Congress are cloaking themselves in devotion to the Second Amendment in order to proclaim support for more federal gun laws, like a useless federal law banning bump stocks?
If conservatives are going to simply offer their preferred federal gun laws to counter the left’s gun control agenda, then this debate truly has nothing to do with the Second Amendment.
Gun control advocates are driven by one simple impulse today. They believe the Second Amendment is an archaic bit of script in a document that really doesn’t mean much today, and as such, it must be subverted and/or destroyed at all costs.
That’s it. And they don’t even make efforts to cloak that fact with ridiculous arguments about the “militia preface” anymore. And that is because it is now implied and assumed that the federal government has the right to infringe upon gun owners’ Second Amendment rights if popular whims demand it.
But if the Second Amendment is truly the measure we’re arguing upon, it shouldn’t.