After a deadly mass shooting, like Sunday’s in Las Vegas, the deadliest in American history, Republicans like to start shouting at liberals and progressives about their 2nd Amendment rights to have guns.
Bill O’Reilly even said after Sunday’s massacre that it’s just “the price of the constitutional right” to bear arms. Gee, tone down the sympathy a little, Bill.
But, like so many issues like healthcare, tax reform, voting rights, immigration, etc. etc. etc., Republicans have no clue what they’re actually talking about when it comes to the 2nd Amendment.
Mother Jones gives us a little better background in this interview with author and 2nd Amendment expert Michael Waldman from 2014:
Mother Jones: What inspired you to write this book?
Michael Waldman: I started the book after Newtown. There was such anguish about gun violence and we were debating, once again, what to do about it. But this was the first time we were having that conversation in the context of a Supreme Court ruling that the Second Amendment protects individual rights of gun owners. And now every time people debated guns, every time people talked about Newtown, they talked about the Second Amendment. I wanted to see what the real story was: What the amendment had meant over the years, and what we could learn from that.
MJ: What preconceived notions about the Second Amendment did the history that you uncovered confirm or debunk?
MW: There are surprises in this book for people who support gun control, and people who are for gun rights. When the Supreme Court ruled in Heller, Justice Scalia said he was following his doctrine of originalism. But when you actually go back and look at the debate that went into drafting of the amendment, you can squint and look really hard, but there’s simply no evidence of it being about individual gun ownership for self-protection or for hunting. Emphatically, the focus was on the militias. To the framers, that phrase “a well-regulated militia” was really critical. In the debates, in James Madison’s notes of the Constitutional Convention, on the floor of the House of Representatives as they wrote the Second Amendment, all the focus was about the militias. Now at the same time, those militias are not the National Guard. Every adult man, and eventually every adult white man, was required to be in the militias and was required to own a gun, and to bring it from home. So it was an individual right to fulfill the duty to serve in the militias.
“You can squint and look really hard, but there’s simply no evidence of it being about individual gun ownership for self-protection.”
MJ: You point out that the NRA has the Second Amendment inscribed in their lobby, but with the militia clause removed.
MW: Yes. That was first reported in an article in Mother Jones in the ’90s. But I didn’t want to rely on just that, so one of my colleagues went out to the NRA headquarters to look at the lobby. And she had her picture taken in front of the sign so we could confirm that it was actually still there!
MJ: Based on the history you’ve uncovered, do you think the founders understood there to be an unwritten individual right to arms that they didn’t include in the Constitution?
MW: Yes. And that might be noteworthy for some. There were plenty of guns. There was the right to defend yourself, which was part of English common law handed down from England. But there were also gun restrictions at the same time. There were many. There were limits, for example, on where you could store gunpowder. You couldn’t have a loaded gun in your house in Boston. There were lots of limits on who could own guns for all different kinds of reasons. There was an expectation that you should be able to own a gun. But they didn’t think they were writing that expectation into the Constitution with the Second Amendment.
MJ: You write that throughout most of the 20th century, the courts stayed out of the gun laws debate. What changed that led them back in?
MW: What changed was the NRA. In 1991, former Chief Justice Warren Burger said that the idea that the Second Amendment recognizes an individual right to gun ownership was “a fraud” on the public. That was the consensus, that was the conventional wisdom.*
“Those who want more guns and fewer restrictions realized they could gain some higher ground if they claimed the Constitution.”
The NRA has been around for a long time. It used to be an organization that focused on hunters and on training. In 1977, at the NRA’s annual meeting, activists pushed out the leadership and installed new leaders who were very intense, very dogmatic, and very focused on the Second Amendment as their cause. It was called the “Revolt at Cincinnati.” From there, the NRA and its allies waged a 30-year legal campaign to change the way the courts and the country saw the Second Amendment. And they started with scholarship. They supported a lot of scholars and law professors. They elected politicians. They changed the positions of agencies of government. They got the Justice Department to reverse its position on what the amendment meant. And then and only then did they go to court. So by the time the Supreme Court ruled, it sort of felt like a ripe apple from the tree.
They also moved public opinion. Now it’s a pretty widely held view that it’s an individual right. It’s funny, I was just on a panel with Alan Gura, who argued the Heller case. And, you know, I gave him credit for being part of a really significant effort that changed the way we see the Constitution. What’s funny is that he and other gun rights people deny it! They say, “No, this is what everyone thought all along, for 200-plus years.”
MJ: What are your thoughts on the historical argument that the Second Amendment is a civil right protected under the 14th Amendment?
MW: After the Civil War, there were a lot of freed slaves who were terrorized by white vigilantes. One of the purposes of some of the framers of the 14th Amendment was to make sure that they get guns. Now, the Reconstruction government that enforced the 14th Amendment also had very strong gun laws, such as prohibitions on carrying concealed weapons. Just like the colonial period and the early revolutionary period, it was a very different time. What you had in the South was low-grade guerrilla warfare between the races. It’s hard to draw the lesson of what we should do now, in our urban society where assault weapons are available for sale, from the Reconstruction era.
Wow. Share this with any gun toting, redneck, constitutionally ignorant person who starts arguing about their second amendment rights. Of course, you’ll probably have to read it to them.