There is no such thing as an unconstrained right. Speech has limits. Religion has limits. Assembly has limits. The idea that any of these things can be completely “free” of government oversight is a pipedream, and everyone from the founders to the current Congress has recognized this as true.
Just looking at speech, there are some very obvious boundaries. Libel is illegal. Slander is illegal. But where the line falls between protected speech and either of those two crimes is constantly shifting. How do laws about libel apply to politicians? Can you slander a celebrity? Sedition is illegal, but what kind of speech crosses that line? Pushing a mob to commit an assault or murder is a crime, but what it takes to be convicted has been elaborated on over the years so that statements that would have clearly landed someone in jail a century ago are now openly permitted.
Laws about freedom of speech don’t just shift when it comes to content and context, they’re also constantly updated to address something else: technology. Radio. Movies. Television. The internet. Even comic books. All have sparked changes in what is permitted and how speech is regulated. But somehow, we pretend that guns are different; that words written when the most deadly weapon required a ramrod and black powder mean that we can’t make adjustments for a semi-automatic rifle and a 30-round clip.
The truth is that guns are different. Because the right to bear arms is a lesser right. A right that was never intended to exist at all.
What makes individual gun ownership a lesser right? It’s a right that only exists in the minds of a handful of hard-right Supreme Court justices who happen to be on the court at this moment. Until 2008, no federal court had ever ruled that the Second Amendment included a right to individual gun ownership. It was always understood as it was written: Guns were allowed in individual hands as a means to supply the armed forces.
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Here’s the Milwaukee Independent looking at how Chief Justice Warren Burger discussed the Second Amendment.
The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
That the Second Amendment exists at all is more an accident of timing than an attempt to put guns in the hands of every American. The amendment grew out of a fear that having a standing army would leave the nation open to depredations by an authoritarian leader, or that the nascent democracy would be overthrown by a military junta. To that end, they explicitly inserted the Second Amendment as an alternative means of providing national defense. There were multiple drafts of the Second Amendment. Every one of them includes text explaining that this amendment exists only because it’s needed to provide for the nation’s defense.
Just a year after the Constitution was ratified, George Washington nudged Congress to create an official U.S. military, but the still-fearful Congress limited that force to just few hundred soldiers and officers. It would be another six years before it was allowed to grow significantly. When war came in 1812 two things were immediately obvious: The number of soldiers then in the official U.S. military were far from enough to defend the nation, and the poorly organized civilian militias for which the Second Amendment was created were an absolute failure when it came to national defense.
In the next year, the professional military of the United States grew by over 300%. “Second Amendment solutions” were on their way out.
The Second Amendment is failure. It never worked for its intended purposes. It was born from the understandable fears of a new nation engaged in a radical new scheme. But it was a mistake. It may be the most costly mistake this nation has ever made other than failing to end slavery at the outset.
The right thing to do would be to recognize that mistake and pass a new amendment that simply ends the Second Amendment, just as the 18th Amendment was repealed by the 21st Amendment in 1933. (Take a drink.)
Instead, we get statements like this piece of profound ignorance. One that is wrong. Wrong. Wrong again. And then … still wrong.
Recognizing that an actual repeal of the Second Amendment—while absolutely just—isn’t likely, the next best thing is to simply recognize that the right to individual gun ownership is a lesser right, one whose appearance in that useless amendment subjects it to practical constraint.
The right to free speech is carved into the First Amendment without comment, restriction, or declaration of purpose. There’s no “so that we can have good political debates” or “so that people can provide accurate directions to the nearest Starbucks” attached to the right to speech. It is unlimited in the U.S. Constitution, but that has never stopped the nation from determining that there are words that can’t be said on broadcast TV or claims that can’t be made about that new stock offering.
Most of all, other rights, speech included, have had to face the constant test of changing technology. What can be said in an online forum? Who is responsible for policing that space? Who had the legal liability for speech that slips across the line into slander, or a call to violence, or hate speech? Congress and the courts decide these questions regularly.
An AR-15 is not a musket, damn it. It’s not “a modern musket” or the “equivalent of a musket” or anything like a musket, and all the bullshit in the world won’t make it so. Congress and regulators recognize that changing technology obligates them to change how they deal with other rights. They could at least do that much when it comes to guns.
The idea that any government body, from the local city council to Congress, can’t pass regulations limiting the technology that can be included in a weapon is ridiculous. It’s counter to the way we treat every other right, rights that are genuinely unbounded in the Constitution. With a combination of NRA-funded congressmen and a Supreme Court that’s at the most extreme edge of an extreme party, America has not just cut a right to individual gun ownership out of whole cloth, it has elevated this fake right above the restrictions that are constantly applied to genuine rights.
Fixing it take two things: a Congress willing to step up to its responsibilities in defending the public good, and an expanded Supreme Court that dilutes the power of justices who are deliberately and maliciously misreading the clear text of the Second Amendment to massacre children in fourth-grade classrooms.
