October 5, 2015 Leave a comment
Nice piece from Adam Gopnik:
Like it or not, according to this argument, the Constitution limits our ability to control the number and kinds of guns in private hands. Even the great Jim Jeffries, in his memorable standup on American madness, says, “Why can’t you change the Second Amendment? It’s an amendment!”—as though further amending it were necessary to escape it.
In point of historical and constitutional fact, nothing could be further from the truth: the only amendment necessary for gun legislation, on the local or national level, is the Second Amendment itself, properly understood, as it was for two hundred years in its plain original sense. This sense can be summed up in a sentence: if the Founders hadn’t wanted guns to be regulated, and thoroughly, they would not have put the phrase “well regulated” in the amendment. (A quick thought experiment: What if those words were not in the preamble to the amendment and a gun-sanity group wanted to insert them? Would the National Rifle Association be for or against this change? It’s obvious, isn’t it?) [emphasis mine]
Now, you can go on and on about how the “militia” is really the people and all that. Which of course is why we see “militia” all over the rest of the Constitution– right? :-).
Gopnik continues with a nice summary of John Paul Stevens dissent in the 2008 Heller case which gave us the modern “right” to own a gun a scant 7 years ago:
Stevens, a Republican judge appointed by a Republican President, brilliantly analyzes the history of the amendment, making it plain that for Scalia, et al., to arrive at their view, they have to reference not the deliberations that produced the amendment but, rather, bring in British common law and lean on interpretations that arose long after the amendment was passed. Both “keep arms” and “bear arms,” he demonstrates, were, in the writers’ day, military terms used in military contexts. (Gary Wills has usefully illuminated this truth in the New York Review of Books.) The intent of the Second Amendment, Stevens explains, was obviously to secure “to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” The one seemingly sound argument in the Scalia decision—that “the people” in the Second Amendment ought to be the same “people” referenced in the other amendments, that is, everybody—is exactly the interpretation that the preamble was meant to guard against.
Stevens’s dissent should be read in full, but his conclusion in particular is clear and ringing:
The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding . . .
Justice Stevens and his colleagues were not saying, a mere seven years ago, that the gun-control legislation in dispute in Heller alone was constitutional within the confines of the Second Amendment. They were asserting that essentially every kind of legislation concerning guns in the hands of individuals was compatible with the Second Amendment—indeed, that regulating guns in individual hands was one of the purposes for which the amendment was offered.
And say what you will about this so-beloved “right” of individual, unfettered gun ownership. It’s basically a 7-year old right hanging by a 5-4 Supreme Court decision. That can change:
So there is no need to amend the Constitution, or to alter the historical understanding of what the Second Amendment meant. No new reasoning or tortured rereading is needed to reconcile the Constitution with common sense. All that is necessary for sanity to rule again, on the question of guns, is to restore the amendment to its commonly understood meaning as it was articulated by this wise Republican judge a scant few years ago. And all you need for that is one saner and, in the true sense, conservative Supreme Court vote. One Presidential election could make that happen.
Of course, even with the current 2nd amendment interpretation we could do a lot to ameliorate the worst effects of guns. We should.