The recent act of self-defense by a teen widow in shooting an home intruder has been somewhat of a rallying cry among the right which has made them reaffirm what can only be called the "second amendment myth."
Now I'm not for banning all guns and restricting it to the military but I am against holding myths and misinformation. Unfortunately the second amendment myth, like the myth that "corporations are people" and "money is speech" has gained legitimacy in recent years with supreme court cases reaffirming the myth both to liberals and conservatives and makes it tricky to discuss.
However, the idea that there is a constitutional right to own a material object that happens to be a gun, is a myth.
The Founders and the Second Amendment
Lets begin with the second amendment says in Full:
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.
Despite the popular sentiment that the founders advocated unabridged gun freedom very little evidence shows this.
Save for a few vague quotes about taking arms (some of which fake quotes floating around the internet) the closest the founders discussed about the second amendment were militias with explicit descriptions in the Federalist papers of what a militia is and how large it should be among other things. In Federalist Paper #29 it said the Union has the power
"to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."
(All caps original)
Other interpretations by Founders showed that they believed that state organized militias should be created in the event of a tyrannical federal government.
The Early Supreme Court Cases
In the earliest second amendment cases, the issues often dealt with militias and to what extent people were authorized be in a militia.
Then in 1939 the landmark decision came in United States v. Miller which drew the first distinction in the issue.
As a case that dealt with challenges to a law prohibiting certain firearms it came with two big conclusions:
- The Second Amendment only protects use of weapons in an organized militia.
- The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
- it thus determined:
The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.
Or put simply, if it's not about militias it's not about the Second Amendment.
This also had a huge precedent, for roughly 60 years afterwards lower courts rejected almost all claims of abuse of second amendment rights from gun owners since it did not relate to militias. As Uviller and Merkel subtitle it in their book, "The Second Amendment Fell Silent."
Gun Activism In The Courts
Then after about 200 years of legal precedent came the Roberts Court. It suddenly overturned almost all of US history in favor of gun rights advocates with District of Columbia v. Heller in 2008 and subsequent cases.
Edit: Someone brought up that Scalia writing the majority decision, went so far as to say that the amendment had prefatory and operative clauses, the prefatory being "A well regulated Militia, being necessary to the security of a free State." That means half of the amendment is completely useless "window dressing" added for rhetoric. Imagine if someone argued the First Amendment's "Congress shall make no law respecting an establishment of religion" was just a meaningless prefatory phrase.
It was so blatant that in a scathing criticism, conservative judge J. Harvie Wilkinson III compared it to Roe v. Wade and said it "represents a triumph for conservative lawyers" as "Heller encourages Americans to do what conservative jurists warned for years they should not do: by-pass the ballot and seek to press their political agenda in the courts."
With Heller, like other Roberts Decisions, came the evaporation of centuries of cases and decades of Supreme court precedent that roughly reflected an originalist observation in the Constitution.
Put simply, the Founding Founders nor most people thought the Constitution guarantees a right to a material object, let alone a gun.
