By Matthew Walther, October 6, 2017
The Second Amendment clearly and definitively does not say what so many gun-rights absolutists in America claim it does. This is interesting when you consider conservatives’ otherwise consistent adherence to constitutional originalism.
Consider, for instance, that one of the soundest, if clearly not the most persuasive, arguments made against legalized abortion in this country is that the actual text of the 14th Amendment, so far from containing some kind of ethereal right to privacy that extends to child murder under appropriately clandestine conditions, is a straightforward brief for protecting the lives of all persons, including those in utero.
In order to accept this position, you have to imagine that when you read the Constitution, what matters is the text itself, not your prejudices or preferences. Does a given statue do something that the text forbids? No? Then it is constitutional, which is not the same thing as laudable or sensible or not downright evil. Affirming that a piece of law is “constitutional” is a very low bar to clear in moral terms; it is the legal equivalent of being asked how lunch was and responding “carbon-based.”
For a variety of reasons, American liberals have, often with an eye on its historical shortcomings, come largely to reject this approach to jurisprudence. Conservatives have not. Originalism is a litmus to which every Republican nominee to the Supreme Court in my lifetime has been subjected. An entire parallel industry has grown up in the legal profession around the philosophy. Thinking in originalist terms is second nature for American conservatives.
This is why it’s so bizarre when the Second Amendment is trotted out by conservatives in defense of the virtually unlimited rights of firearm enthusiasts to purchase, decorate, modify, load, play dress-up with, and occasionally shoot a vast array of tools manufactured for the sole purpose of taking human life with grim efficiency. From an originalist reading of the text, it is not automatically clear that individuals in their private capacity have a right to own so much as a squirt gun.
Let us remind ourselves exactly what the Second Amendment says: “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.” No fair-minded adult reader could possibly hope to reconcile these 27 words with the fanatical views of the Second Amendment Foundation and the National Rifle Association.
Which is not to say that the amendment disqualifies them either; rather, it is silent on the subject. This is a provision about state militias, the 18th-century ancestor of our armed forces, as The Federalist No. 29 makes clear. Translated into 21st-century American, all this means is that we should have a military. Guess what? We’ve got one already, one that is far more capable of providing for “the security of a free state” than any ragtag bunch of firearm-hoarding hobbyists. Not even 10,000 of this country’s most dedicated Halo LARPers could defend this country against a Russian or Chinese invasion — but just one of them can kill dozens of people in a matter of seconds using firearms and ammunition that can be legally purchased with relative ease.
None of this should actually be a problem for gun fanatics. They are free to make any arguments they wish in favor of their pet cause. But they cannot, if they are being intellectually honest, pretend that their opponents lose automatically because of the Second Amendment. According to our constitutional settlement, the question of what, if any, regulations should govern the private ownership and use of machine guns, pistols, javelins, nunchaku, rapiers, catapults, and nuclear warheads is one that is left to the prudence of our democratically elected legislators at the local, state, and federal level.
There is, in fact, only one really good argument in favor of a broad understanding — one that goes beyond rifles for hunting and hobby shooting and handguns in some circumstances for basic protection — of gun rights in this country. It is what you find if you scratch any Second Amendment absolutist, and it has a basis in the English Bill of Rights, which ex-post-facto justified the Protestant overthrow of that country’s rightful Catholic monarch.
If the argument is that you need guns that are technically not the same ones Marines use to kill terrorists but just tricked out to inspire the same amount of fear in onlookers and fire nearly as fast for some hitherto-unspecified moment when it will become necessary to put on war paint and lay siege to Washington, congratulations: You are working in the distinguished intellectual tradition of Jefferson Davis, Ted Kaczynski, and Timothy McVeigh, among other giants of modern conservative thought.
Do you need guns for the second American civil war? Make that argument if you want. It would be, if nothing else, a great deal more interesting than telling lies about a 200-some-year-old piece of parchment.
Photo (Hi-Story/Alamy Stock Photo): http://api.theweek.com/sites/default/files/styles/tw_image_9_4/public/JWBG64.jpg