Excerpt from The Daily Beast (December 18, 2012) —
“GUN RIGHTS ADVOCATES SHOULD FEAR HISTORY OF THE SECOND AMENDMENT”
Up until the 1980s, there was no “individual-rights” theory
of the Second Amendment. Many states had adopted provisions
protecting an individual right to own guns, but this
tradition was distinct from the Amendment. All that changed
when right- wing think tanks undertook a conscious effort to
fund new scholarship to rewrite the amendment’s history. At
first that effort was not well received, even in
conservative circles. As late as 1991, former Supreme Court
chief justice Warren Burger famously called the idea of an
individual right to bear arms “one of the greatest pieces of
fraud – I repeat the word `fraud’ – on the American public
by special-interest groups that I have ever seen in my
But the revisionism ultimately won over most of the legal
establishment, reaching its zenith in 2008, when the Supreme
Court broke with 70 years of established jurisprudence and
affirmed that the Second Amendment protects an individual
right to have guns in the home for reasons of self-defense.
In order to do this, the majority followed the lead of gun-
rights advocates and essentially excised the first clause of
the amendment – the “well-regulated militia” part – from
(Let us pause briefly to note the irony that the opinion,
District of Columbia v. Heller, was written by none other
than Justice Antonin Scalia – America’s staunchest defender
of originalism, or reading the Constitution according to its
supposed original meaning.)
If the Heller court had simply said, “Look, most Americans
think the Amendment is about an individual right, and no one
really cares what James Madison or the average man on the
street in 1791 thought” – then the case would be pretty
uncontroversial. Instead, Scalia produced a pompous, error-
filled opinion that has done more to discredit his beloved
originalism than a generation of liberal academics ever
Even leading conservative legal scholars have harshly
criticized the ruling: federal judge Richard Posner said
most professional historians reject Scalia’s historical
analysis in the case, and described Scalia’s jurisprudence
as “incoherent”. Perhaps even more damning, J. Harvie
Wilkinson, a federal judge appointed by Ronald Reagan,
compared Heller to Roe v. Wade.
Of course, the fact that the Second Amendment is now treated
as an individual right has almost no bearing on gun
regulation, because no right is absolute. You can’t shout
“Fire!” in a crowded theater, nor can you fire a gun in one.
And most Americans – including those who own guns – are
open to reasonable gun regulation. The only people who
oppose such policies are the NRA, extreme gun-rights
advocates, and the craven politicians who do their bidding.
But what would such regulation look like?
For one thing, we could have a comprehensive system of
firearm licensing and registration. At the moment we have
none (even though it is hard to fathom how one might ever
muster a militia without such a system). To avoid the
irrational fears of gun confiscation, such a system ought to
be instituted by the states, which maintained militias long
before the Second Amendment existed. Could anyone with even
a minimal understanding of the history of the Second
Amendment seriously maintain that a state-based system
violated the Amendment’s text or spirit?
The bottom line is that although we hear the Second
Amendment invoked all the time, few of those who trumpet it
the most vehemently realize that restoring the Founders’
vision of the Second Amendment would be a call for more gun
regulation, not less.
The SECOND AMENDMENT is to be read in its entirety. The right to keep and bear arms is predicated upon the existence of a “well-regulated militia”. There is no Constitutional right to take up arms against the Government, there is only a Right to keep arms to be able to support the Government. As early as 1786, the city of Boston, home of the Revolution, prohibited the keeping of a loaded gun within the city limits. The Law may constitutionally restrict gun ownership to Militia members or it may restrict what kind of guns are owned, or it may mandate the registration of guns.