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Tuesday, December 18, 2012

It Is Our Living Constitution That Gave Us Our Right to a Bushmaster Rifle

Posted by on Tue, Dec 18, 2012 at 10:45 AM

Jeffrey Toobin makes a great point:

Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century...

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagan’s election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find “clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.

And so, eventually, this theory became the law of the land.

What was the previous prevailing theory? That the Second Amendment is about what it says it's about in the first sentence: the right of individual states—not private individuals—to have a "well-regulated militia."


Comments (44) RSS

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Rhett Oracle 44
I often reflect on the inanity of continually projecting what the Founding Fathers' thoughts and opinions might have been in regard to the Constitution's Rosetta Stone, the Second Amendment. Such supposition makes as much sense as interpreting their opinions on the use of seat belts in carriages, ingredient labels on butter churns and cancer warnings on tobacco wads. I doubt the Founding Fathers would not have had much use for hunting squirrels and pheasants with Thompson machine guns or protecting their humble hearths with Uzis.
Posted by Rhett Oracle on December 19, 2012 at 11:01 AM · Report this
Eli is a fucking dolt.
Posted by Dominic's Mom on December 18, 2012 at 8:50 PM · Report this
Cascadian Bacon 42
Well, despite being ambushed one of the officers managed to shoot and wound the killer.,_W…

"Officer Greg Richards managed to fight back against Clemmons and fired his own weapon, hitting Clemmons in the abdomen, before succumbing to a shot to the head. "
Posted by Cascadian Bacon on December 18, 2012 at 8:40 PM · Report this
@35, um, how about the 4 Lakewood officers who were shot in a coffee shop? They all had guns on their person, and so presumably anyone with a license to carry a gun (officers, people with concealed-carry permits) were allowed to have guns in that location.
Posted by JenV on December 18, 2012 at 6:03 PM · Report this
Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn 40

You keep re-posting the same stupid shit. Nobody is buying it.
Posted by Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn on December 18, 2012 at 4:07 PM · Report this
Cascadian Bacon 39
"the right of the people to keep and bear Arms, shall not be infringed."

Mind telling me who "the people" are?

The militia is not a formal organization, it consist of the people, who have both a right and a duty to be armed. An armed population is necessary to a free state.

Contrary to popular belief most people on an Army Base are not armed, guns are kept locked up in the armory unless actively being used for training. The only ones armed on a base are the Military police.
Posted by Cascadian Bacon on December 18, 2012 at 3:22 PM · Report this
Why does "the people" mean different things in the 2nd and 4th amendments? What am I missing?
Posted by Wondering on December 18, 2012 at 3:02 PM · Report this

Actually, the area of Fort Hood in which the shooting took place was a gun-free area. None of the soldiers were armed, or even allowed to be armed, at the time of the shooting.
Posted by Walter Matthau on December 18, 2012 at 2:55 PM · Report this
Beetlecat 36
@35 Excepting that high-profile shooting at -- oh-- an army base back in 2009. No guns there.
Posted by Beetlecat on December 18, 2012 at 2:48 PM · Report this
Great articles

"John Lott, who conducted a study on mass shootings in 1999 spoke with John Fund after the Newtown school shooting and pointed out the following, "With just one single exception, the attack on congresswoman Gabrielle Giffords in Tucson in 2011, every public shooting since at least 1950 in the U.S. in which more than three people have been killed has taken place where citizens are not allowed to carry guns."

Gun-control advocates generally scoff at the "conservative" argument that if other people present at the scene of a mass murder had been armed, that they could have stopped the shooter. As we know from the above articles, as well as several studies, mass shootings happen in places like schools, churches, etc.. All gun-free zones.

Meanwhile, when was the last time you heard about a mass-shooting at a gun show or gun store? It just doesn't happen. And I'll give you one guess why.
Posted by Walter Matthau on December 18, 2012 at 2:33 PM · Report this
lark 34
For the record, I don't and never have possessed a firearm. I do believe that assault rifles should be banned.

That said, I just read these two pieces from gun-rights advocates:…


What intrigued me was that Connecticut has one of the most restrictive gun control laws in the nation. Also, I did know the late author, William Burroughs (first piece) was a gun nut and didn't know he said those words in the wake of a mass shooting.
Posted by lark on December 18, 2012 at 1:47 PM · Report this
Because the SCOTUS has already ruled on that.…
Posted by fairly.unbalanced on December 18, 2012 at 1:33 PM · Report this
How about we interpret the 2nd amendment to mean that you can only have the kind of guns that were in existence at the time of its writing: single-shot rifles that had to be loaded with gunpowder and musket-balls, or whatever, and then God help you if you couldn't even manage to hit the side of a barn, much less a person, before taking another couple minutes to load your next shot? I'd be cool with that.

Which is to say, I don't believe the authors of the constitution could have ever imagined an assault rifle with the capability of massacring 50 or 60 people in under 5 minutes.
Posted by JenV on December 18, 2012 at 1:26 PM · Report this
"I''d like to see us take another look at what 'well regulated' is supposed to mean. "

Functional. Skilled.
Posted by fairly.unbalanced on December 18, 2012 at 1:04 PM · Report this
NotSean 30
@21 yeah, I know what the court said.

I thought the little thread to which I was responding was about the language used to write the 2nd amendment and just what it might've meant.

Did you know, for instance, the 2nd amendment's grammar differs slightly between what the states ratified and what congress approved? Perhaps - just perhaps - some inconsistent scribe's' grammar is at the root of all this. ( and, oh I suppose some might argue that the discrepancies might even invalidate the amendment altogether )

Think about it, or dismiss it as irrelevant, or just bark some more.
Posted by NotSean on December 18, 2012 at 12:56 PM · Report this
It's an independent clause. The Constitution clearly says congress can't infringe on the right to bear arms. It says nothing about requiring citizens to be a part of a well-regulated militia. That's not vague. That's not a strange interpretation. That's the way the courts have been reading it for the last two hundred years.

I'm not saying I like it, that's just the way it is. There are plenty of conservatives who don't like the separation of church and state that constantly claim that's not what the Constitution says, even though it's right there.
Posted by GermanSausage on December 18, 2012 at 12:47 PM · Report this
Urgutha Forka 28
One other thing...

Nuclear power plants are privately owned. The fuel used to create power produces plutonium. This plutonium could be extracted and enriched to create nuclear weapons.

So in a sense, we already have private ownership of nukes.
Posted by Urgutha Forka on December 18, 2012 at 12:12 PM · Report this
fletc3her 27
I'd like to see us take another look at what "well regulated" is supposed to mean.
Posted by fletc3her on December 18, 2012 at 12:12 PM · Report this
treacle 26
Man, I wouldn't trust more than 10 people I happen to already know to be in a militia with me. With all the differing ideas of politics and the various (insertHatred)-phobias out there, I would certainly not feel that safe with that many "gun-culture" people.
Posted by treacle on December 18, 2012 at 12:03 PM · Report this
Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn 25

You really do take whatever some anonymous shut-in wrote on Wikipedia at face value? You do realize that an 8th grader who wrote a paper from Wikipedia like that would get an F?
Posted by Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn on December 18, 2012 at 11:42 AM · Report this
Will in Seattle 24
@14 for the Epic Win of the Constitution.
Posted by Will in Seattle on December 18, 2012 at 11:40 AM · Report this
Theodore Gorath 23
@16: I do not think you were wrong about anything you said in that comment, and I would welcome a vigorous debate on the merits and use of the amendment in modern times.

The strength of our constitution is its mutability, and I think consititutional originalists are stupid and miss the point of the very document. Just like taking the bible literally: you miss the morals of the stories.

But, I think the statement is clear, and the history of why they put the amendment in the document also points to private gun ownership, as derived from English law.

Fighting on the interpretation when most of the country and the Supreme Court has ruled on its meaning is essentially a losing, pointless fight, as it has already been lost. The fight now is convincing people that gun control does not infringe, and that gun control is needed.

What I think is most humorous about the amendment is that the whole point is for the people to defend themselves from the government, and the very real fear that the powerful would simply declare themselves kings of America. So the spirit of the amendment is to ensure that the people would have access to the same arms as the government, which was the case in 1776, with long muskets and cannons. So if we really want to be originalists, then the people should also have access to nukes, tanks, .50 caliner machine guns, etc.

Of course, that would be horribly stupid, but it proves that we already, as a nation, do not believe in the original intent of the amendment.
Posted by Theodore Gorath on December 18, 2012 at 11:39 AM · Report this
Urgutha Forka 22
To be fair, I did say there's a lot of restrictions.

The unregistered commenter(s) said, outright, "automatic weapons (i.e., machine guns) are banned," which is not true. They are not banned. Heavily, HEAVILY restricted and regulated, but not banned.
Posted by Urgutha Forka on December 18, 2012 at 11:39 AM · Report this
"My understanding - from wikipedia (fwiw) ..."

I can post this over and over and over.
In fact, I HAVE! LOL…

On June 28, 2010, the Supreme Court, in a 5–4 decision, reversed the Seventh Circuit's decision, holding that the Second Amendment was incorporated under the Fourteenth Amendment thus protecting those rights from infringement by local governments.

Kind of the opposite of that.
The SCOTUS says that lower governments (state / city / etc) cannot take away your 2nd Amendment rights.
Posted by fairly.unbalanced on December 18, 2012 at 11:38 AM · Report this
Tell us what does Article I, section 24 of our State Constution say.
Posted by Blackdog on December 18, 2012 at 11:36 AM · Report this
Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn 19

It's facile to say "it's legal". The critical point is that those things are heavily restricted.

The fact that the Second Amendment doesn't grant unrestricted access to weapons of war is all that matters. The Second Amendment doesn't say, "OK, you can keep nuclear bombs and machine guns out of the hands of whom you choose, but you must allow anybody to have semi-automatics with 30 round magazine."

In fact, it is entirely within the purview of the Congress to decide that an M4 or a 30 round magazine is to be restricted just like a machine gun, or forbidden like a nuclear bomb. Well regulated means well regulated.
Posted by Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn on December 18, 2012 at 11:32 AM · Report this
NotSean 18
@3 My understanding - from wikipedia (fwiw) - is that the basis of the 2nd amendment was a concept that the federal govt should not prevent a citizen from having a gun that was otherwise legal per their state.

The federal govt could not take your legal gun merely because you have one.

However, so the argument goes, the state govt - as elected by the people - may pass and enforce any laws necessary to manage use of guns by whom, and what, and how, and when, and where.

This based on some prior experiences in England where guns were sometimes confiscated without any legal cause.

It wasn't about 'anyone can have any gun anytime, anywhere.'

It was 'If my state says I can have it, that's all that matters.'

I, for one, think a revised understanding of the 2nd amendment - or an outright revision - would be helpful.

Then, follow that up with state laws for the very sane and well-regulated use of firearms, restricting all high capacity weapons to designated public security professionals, and state-authorized armories (slash part-time shooting ranges).
Posted by NotSean on December 18, 2012 at 11:31 AM · Report this
Max Solomon 17
the militia has been defined down to any male over 18.

so turn in your guns, ladies.
Posted by Max Solomon on December 18, 2012 at 11:30 AM · Report this
Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn 16

My argument is that the phrase "well regulated militia" is there for a reason. It means something. The NRA position is that the phrase is window dressing. That's absurd on its face.

The reaons we have a Supreme Court is because the meaning of the constitution is not self-evident. We know from history that the meaning changes over time. The Court reverses itself. It is allowed to reverse itself; that's built into the system.

They knew all this when they set up the system. They could have said that interpretations of the Constitution were set in stone for all time but they knew that was unworkable. They knew it had to be interpreted and applied to the times.

The idea that the NRA's understanding of the Second Amendment is the only understanding and that nobody gets to express any other opinion is as silly as their canard that the debate on guns is settled and that the pro gun side won.

None of this is settled. It's just a rhetorical ploy to pretend the Second Amendment isn't up for discussion.
Posted by Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn on December 18, 2012 at 11:22 AM · Report this
Urgutha Forka 15

A correction: It IS legal to privately own machine guns:…

It is also legal to privately own explosives, tanks, and other military hardware and weapons (there are several government websites you can look up, like the one above).

There are a lot of restrictions, but it's still legal.
Posted by Urgutha Forka on December 18, 2012 at 11:17 AM · Report this
Backyard Bombardier 14
Only in the United States is the Constitution treated like a suicide pact on stone tablets.
Posted by Backyard Bombardier on December 18, 2012 at 11:15 AM · Report this
@11 even under the SCOTUS ruling the leg can ban unusual weapons; that could mean semi automatics; we already ban automatic weapons, mustard gas and nukes in private hands. jesus, how many times must this basic point be made? just because there is an individual right to bear arms, doesn't mean ALL arms without exception or limitation! it means SOME arms, not ALL arms! thus the door is open to lots of regulation. So, the DC regulation went to far, that doesn't mean a lesser one like banning semi automatics and requiring more things to own handguns wouldn't be okay.
Posted by Heller allows semiautomatic ban on December 18, 2012 at 11:13 AM · Report this
Theodore Gorath 12
@5: Your argument here is pretty ridiculous. You state that the framers only meant the militia could bear arms because they specifically mentioned the militia.

But why then did they mention the people at all? Why not just say the rights of the state-run militias to keep and bear arms will not be infringed?

Your argument defeats itself.

Look, I am not making a point against gun control. We desperatly need some common sense, bold gun control measures. I agree with basically everything Goldy laid out in his post earlier, and I would even take it farther and ban semi automatics from urban areas entirely.

All I am saying isthat there are lots of good, reasoned arguments for gun control that do not infringe on the second amendment. But trying to twist the meaning of the amendment is not one of them. We do not need to lie to make our point.
Posted by Theodore Gorath on December 18, 2012 at 11:12 AM · Report this
You're correct.
And the SCOTUS has already ruled on this.
The SCOTUS ruled that it is the Right of the PEOPLE to own guns.…
Posted by fairly.unbalanced on December 18, 2012 at 11:10 AM · Report this
"gun lovers being so consistently wrong, we should not pay attention to anything they say!"

The ifrst clause limits the second to what they say about guns, obviously. If a gun lover says "hey there is a fire" you should pay attention.
Posted by all words have meaning on December 18, 2012 at 11:10 AM · Report this
Will in Seattle 9
Besides, modern hunting rifles with scopes are more than we need if we know what we're doing. Mortars are easy to craft. You can make drones from kids toys and use the lift factor to deliver munitions.
Posted by Will in Seattle on December 18, 2012 at 11:10 AM · Report this
@2 also nonsense. munitions parity? we won the revolution because of the french fleet off yorktown.
and back in 1787, many private folks had cannon on their ships.
Posted by phoney history on December 18, 2012 at 11:08 AM · Report this
Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn 7

Why is that "mere independent clause" there if it carries no weight? Was the Second Amendment written by doofuses?
Posted by Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn on December 18, 2012 at 11:07 AM · Report this
ted, you're wrong. it does not say
"private citizens may own private weapons" obviously as we have banned all manner of weapons in private hands including, duh, automatic weapons. those are weapons right? also, many states ban numchuks, switchblades, strange weapons and the court in heller said we can ban unusual weapons. and of courwse you agree, you have no right to bear nuclear weapons I hope. As to England, they don't have a right to bear weapons there do they? Finally, see above comment, our second doesn't even use the word "individual" when many many many state constitutions' RTBA do.

most of what you hear from the pro gun side is blather and lies. nonsense. like sayign guns keep us safe, or gun control doesn't work, etc.
Posted by enough phoney lawyering on December 18, 2012 at 11:05 AM · Report this
Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn 5
How come the Second Amendment doesn't use the clear, categorical language of the First Amendment? Why doesn't it just say, "Congress shall make no law regarding the right to keep and bear arms"?

Was it written by people with a weak grasp of English? Did they flounce words about like "well regulated" with no intent? Were they flighty and fickle? Or did they say "well regulated militia" because they meant "well regulated militia"?
Posted by Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagl fhtagn on December 18, 2012 at 11:02 AM · Report this
1. numerous state constitutions written in the 20-40 years after the US constitution had rights to bear arms that said "individual right to bear arms" thus showing the federal one was not an individual right.
2. even if there is some individual right, we still all agree the second amendment does not prvent congress from banning a category of arms: mustard gas; nukes; tanks; automatic weapons. Or should they decide to, semiautomatic weapons. And maybe handguns, too. After all Texas did back in the 19th century despite having an individual right to bear arms.
3. even if the second blocks a ban on say, handguns, that doesn't mean we can't regulate them. basically, all things are regulated, even speech. If you ever paid alimony, you'd find that saying the two little words "I do" carried immense regulatory impacts; you were not "Free" to say those words. Ah, those words are different, but ah, that proves the point. ditto for the words "yes I agree to defraud the bank" or the words "you are a whore" etc. or the words "the company believes the new mine is going to be a huge success!" all those words can have civil or criminal consequences aka regulations.
4. it was a radical non originalist interpretation to hold what teh court held in Heller but even that wouldn't mean we can't enact most of the regulations we're talking about now.
Posted by keep and bear nukes? on December 18, 2012 at 11:02 AM · Report this
Theodore Gorath 3
We can debate the merits of the amendment, but denying what it says always struck me as counter productive.

The comma makes an independant clause, making a clear distinction between the people, and the militia. What it is saying is that because a militia is necessary for a free state, the rights of the people to bear arms must be protected.

Furthermore, it was based upon the natural rights of the people of England to have private arms.

The amendment states that private citizens may own private weapons. Debate the purpose of the amendment, don't make things up hoping to find some kind of "loophole" for banning guns. That is not going to get anyone anywhere.
Posted by Theodore Gorath on December 18, 2012 at 11:02 AM · Report this
The original reasoning for that passage in the Constitution occurred when there was a semblance of munitions parity: the American settlers had flintlocks and some cannon and the British Redcoats had flintlocks and many cannon, but the settlers went guerrilla on the Redcoats, who were ordered to practise the marionette military form of their day, thus giving the settlers a slight advantage. (And the American Revolution required a well-armed militia to succeed.)

The argument that we require assault rifles to protect us from a tyrannical form of government (which does exist to an extent today, true), is fallacious as there exists no parity today, with the militarized police, military, and private military companies, possessing far greater weaponry than the general populace, i.e., lasers and tasers, incredible comm. access, etc., plus a wide array of even worse munitions.

There was a recent trial (actually several) in America (one locally), involving policemen accidentally leaving a loaded Glock (which is designed with a hair-trigger) in proximity of children, with the subsequent accidental shooting and killing taking place.

Point: that firearms shouldn't be allowed in the hands of certain parties: children, the mentally ill, career criminals, the extremely hateful and violent, etc.

No, gun control probably would have no effect on those accidental police/children situations (probably arising from fatigue due to rotating shift work leading to intellectual laxness), but it would most certainly affect the other occurrences.

Posted by sgt_doom on December 18, 2012 at 10:57 AM · Report this
Sargon Bighorn 1
Good point. Now what?
Posted by Sargon Bighorn on December 18, 2012 at 10:52 AM · Report this

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