Docket #15-011: …And the NRA Said Nothing

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Unfortunately, this episode is going to both begin and end on a down note. It couldn’t be helped. There’s no getting around it, I’m going to have to talk about the Second Amendment.

I’m Oliver, and you are listening to episode 15-11 of All Too Common Law.

Tags: McDonald v. City of Chicago, NRA, Second Amendment

TexasBill

The Second Amendment does not create a right; it confirms a pre-exiting right dating back to the Magna Carta. It was very similar to the statement in the English Bill of Rights of 1688.

The section that you call a “wherefor clause” is also known as a prefatory clause or, more to the point, a dependent clause. It depends on the other part of the statement to be valid.

“Wherefore a well regulated militia, being necessary to the security of a free state. …” cannot stand on its own as a complete and meaningful statement. It depends on “… the right of the people to keep and bear Arms … ” to be valid. In other words, the author of the Second Amendment, along with those who voted to ratify it, all believed that a militia depended on the people being armed.

The Second Amendment, like the First, Third, Fourth, Fifth, etc. applies to all states. They aren’t just a limit on the federal government.

Your theories on the restrictions as to quantity and type of weapons are amusing. The Second Amendment doesn’t restrict Americans to Kentucky Long Rifles (much superior to the British Brown Bess) any more than freedom of the press is limited to using Gutenberg-style presses. Private citizens of the day could own muskets, rifles, shotguns, pistols, swords, cannon and most anything else that was state-of-the-art at the time. The only limit to the size of a collection or arsenal was the size of the owner’s pocketbook.

In a case appealed to the Supreme Court (U.S. v. Miller 307 US 174, 1939) the limitation on a shotgun’s barrel length specified in the National Firearms Act of 1934 was upheld by District Court Judge Heartsill Ragon because: “The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.”

Well, if that’s true, a lot of people are going to be upset. The U.S. military currently issues selective-fire assault rifles, pistols with high-capacity magazines, sound suppressors, grenade launchers, shotguns with barrels of 14 inches and submachine guns.

Imagine the shelves at Wal-Mart being stocked with M4 Carbines, Beretta M9 pistols with 15-round magazines and H&K MP5 9mm submachine guns.

As to your criticism of the National Rifle Association for faling to comment on mass shooting incidents, why would they comment?

What would they say? “Bummer?” “Oh, for a good guy with a gun?” “Darn it, guns again! Why couldn’t he have used homemade explosives, a jetliner or nerve gas?”

Your arguments are familiar but, contrary to a statement attributed to Joseph Goebbels, repetition doesn’t make them true.
- Oliver_W_H
  
  I appreciate the comment! Thanks for listening.
  
  I hope the episode didn’t give the impression that I’m somehow unaware of the current state of the law concerning the Second Amendment or it’s evolution since the Founding. My argument (and it’s not in any way a novel one) is that the text is amenable to different interpretations. My bit about the Brown Bess was a hyperbolic example of an interpretation which would remain within the bounds of the text while permitting government regulation of arms.
  
  I’d not read the English Bill of Rights before you mentioned it. I think I’m going to have delve into it a little deeper as it looks quite interesting (even including the reason no one can seem to decide whether it should be dated to 1688 or 1689). The provision it contains about the right to bear arms doesn’t seem to support the current interpretation of the Second Amendment, though:
  
  “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;”
  
  Given the era in which the document was drafted and the theocratic aspects of English government at that time, we can overlook the fact that makes the right available to only Protestant citizens. It’s the phrase “and as allowed by law,” though, which suggests to me that the right, as it was understood in the century leading up to the Founding, assumed some level of government regulation of gun ownership. Though I’m interested to do a little reading on the state of British “arms” control laws in the 18th Century.