On the Second Amendment

As I write this, our streets are filled with concerned citizens—many of them children—marching in support of commonsense gun control. In light of that, I'd like to talk about the Second Amendment, which reads, in its entirety:

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.

Our forefathers' way with words is well documented, but that, my friends, is a garbage sentence. Perhaps that's why its meaning has long been hotly debated.

One school of thought, the individual right theory, claims that "the right of people to keep and bear Arms" confers an individual right to every citizen of the United States. Another school of thought, the collective rights theory, argues that the prefatory clause "A well regulated Militia" suggests the framers intended only to protect the states from the federal government legislating away their collective right to self-defense.

When the Supreme Court first tackled this question, in 1939's United States v. Miller, they came down on the latter side, saying that sawed-off shotguns could be banned because such weapons played no role in "the preservation or efficiency of a well regulated militia." In the court's mind, as elucidated by its unanimous* opinion, the framers included the Second Amendment to ensure that we maintained an effective military. (*Said opinion was 8-0, as one justice did not participate in the case.)

Then came 2008's DC v. Heller, in which the plaintiff challenged the constitutionality of Washington DC's handgun ban. In a 5-4 decision, the court reversed seventy years of precedent by ruling that United States citizens had an individual right to bear arms unconnected to militia service, provided the arms were intended for lawful purposes, such as sport or self-defense.

That's a lot to digest, I know, so let me put it more plainly. For the first 219 years of our country's existence, its citizens didn't have an individual constitutional right to bear arms. In fact, when the Supreme Court finally granted it, Flo Rida sat atop the music charts.

Here's the thing, though. While DC v. Heller represented a seismic shift in the court's interpretation of the Second Amendment, it by no means granted us unfettered access to any damn firearm we pleased. Conservative godhead Antonin Scalia made it clear in his majority opinion that it was still permissible to ban those sawed-off shotguns from United States v. Miller, because sawed-off shotguns served no law-abiding purpose:

Like most rights, the right secured by the Second Amendment is… not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. 

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. 

We also recognize another important limitation on the right to keep and carry arms. Miller (an earlier case) said, as we have explained, that the sorts of weapons protected were those 'in common use at the time'. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’

Scalia went on to say that there were other acceptable limitations on the individual right to bear arms, such as a prohibition on carrying concealed.

The point is, even the most conservative court in decades placed limitations on our right to bear arms. And, since DC v. Heller, lower courts have upheld commonsense gun control laws over and over again. The kind of laws that protect the rights of law-abiding citizens while keeping guns out of the hands of the violent and the mentally ill. The kind of laws the vast majority of Americans (and gun owners, and even NRA members) support.

Those who rail against commonsense reforms aren't just outside the mainstream, they're also dead wrong about their Second Amendment rights. They may drape themselves in the flag, but they have no more regard for the Constitution than they do for the thirty-thousand Americans who die every year as a result of gun violence. They're not patriots, they're petulant children throwing temper tantrums because they don't want anyone to take away their toys. Does that sound to you like the sort of person who should have an assault rifle?

Yeah, me neither. Good thing, then, that even the most conservative reading of the Second Amendment allows us to restrict their access.