This is an expansion of material I posted on Facebook in the wake of the latest school shooting today in Nashville as the NRA and gun manufacturers distort the meaning of the Second Amendment. Those who call themselves “Originalists” should look carefully at what the authors of the Second Amendment meant.
When it was written, we had no standing army. The words “to raise a militia” are at the very beginning of the Second Amendment. When I was in law school, no one suggested that individual citizens had a right to own military style weapons. No one suggested that states and cities could not regulate gun ownership. This has always been the position of traditional conservatives, such as former Chief Justice of the U.S. Supreme Court Warren Burger.
In 1992, he argued that the sale, purchase and use of guns should be regulated just as automobiles and boats are regulated. Such regulations, he declared, would not violate the Second Amendment,
Justice Burger wrote: “The Second Amendment of the U.S. Constitution guarantees ‘a right of the people to keep and bear arms.’ However, the meaning of this clause cannot be understood apart from the purpose, the setting and the objectives of the draftsmen. At the time of the Bill of Rights, people were apprehensive about the new national government and there was reluctance to have a standing army. This helps explain the language and purpose of the Second Amendment. It guarantees ‘A well regulated militia, being necessary to the security of a free state, the right of the people to bear arms shall not be infringed.’”
Justice Burger notes that, “The need for a state militia was the predicate of the ‘right’ guarantee, so as to protect the security of the state. Today, of course, the state militia serves different purposes. A huge national defense establishment has assumed the role of the militia of two hundred years ago. Americans have a right to defend their homes, and nothing should undermine this right, nor does anyone question that the Constitution protects the right of hunters to own and keep sporting guns for hunting any more than anyone would challenge the right to keep and own fishing rods and other equipment for fishing. Neither does anyone question the right of citizens to own an automobile. Yet there is no strong interest of the citizenry in questioning the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. It is even more desirable for the state to have reasonable regulations for the ownership and use of a firearm in an effort to stop mindless homicidal carnage.”
Justice Burger called the “interpretation” of the Second Amendment presented by the NRA and the gun manufacturers, and politicians who are recipients of their largesse, was “a fraud on the American public.” His view of the Second Amendment, Burger declared, “was the consensus view of historians and judges across the political spectrum.” It was certainly the view of the professors with whom I studied in both law school and graduate school.
How many children must die in school shootings before we come to our senses and place the Second Amendment in the proper place the Framers of the Constitution had for it. And even if the Second Amendment meant what the NRA and the gun manufacturers suggest, it is important to remember, as Abraham Lincoln is quoted as saying, “The Constitution is not a suicide pact.”