A reader writes:
The idea of arms being limited to “well-regulated militias” in the Constitution, as your reader claims his father taught him, shows a complete lack of understanding of both the document and the history of its writing. The (presumably sarcastic) remark that the Court has “let any unstable jerk be a militia, and let him regulate himself” is actually the entire point of the Second Amendment. The right to bear arms was an essential right in 1787 because of the risk of Indian incursion, not as a bulwark against tyranny or a defense against foreign invasion. The concept of a “well-regulated militia” as it concerned pre-Revolutionary America actually would often have been little more than a posse of all available homesteaders organized to defend the area or march on a nearby settlement.
In this context, each individual actually does represent his own militia, because he may be the only one available to defend an isolated farm. The idea that the Founders intended weapons to be limited exclusively to organized military formations is preposterous; with few exceptions, such formal organizations did not exist. In many frontier regions, there would have been no defense available to settlers if the Amendment was read as many now propose.
This absolutely does not mean that gun control is unconstitutional, however. The inclusion of the phrase “well-regulated militias” in the Amendment was not an accident, even if it is frequently misread today.
The Founders intended weapons to be readily available to the extent that Americans would be ABLE to form a “well-regulated militia” to defend against incursion. This is the appropriate reading of the Amendment. Gun control should therefore be based, as it was in 1934 and 1994, on a determination of what constitutes a necessary weapon to enable the formation of a militia. I personally think that hunting rifles and pistols probably constitute an adequate complement of weaponry for a militia (in a country with a standing army), but others may disagree. Tragedies like Newtown should be occasions to reevaluate our definitions.
Instead people on the right defend the right to bear all weapons as a defense against Obamacare or something while people on the left, like your reader, dismiss the right to bear arms entirely on the grounds that militias don’t exist anymore.
Is the Second Amendment outdated? Probably, but I don’t see a sizable movement to repeal it anywhere. Instead of talking past each other we should be debating which types of weapons are defensive and which are not. This is what Obama has tried to do in the past few months, to his credit.
You published correspondence from a reader who wrote: “Well, the NRA finally found a Court that was willing to ignore the word ”militia” and the concept of “well-regulated” – overturning 230 years of jurisprudence. ” This statement is way off-base. The NRA was not behind either of the cases that went to the Supreme Court resulting in the finding that the Second Amendment protects an individual right.
In fact, the NRA tried every imaginable approach to keep the case that eventually became Heller from going forward. They filed a copycat suit with other plaintiffs and named additional defendants who brought much more power and influence to the opposing side. They tried to have their suit consolidated with the original suit, with their attorney named as counsel. They also tried to get their allies in Congress to enact legislation that would moot the case. Only after those bringing the suit had prevailed at the appellate level (four years after the original filing) did they finally simply stay quiet while the rest of the litigation proceeded. Similarly, they did not finance or back the McDonald case that incorporated the right established in Heller to state law.
When the Heller case was decided, it brought the Supreme Court’s jurisprudence into line with the consensus of the majority of Constitutional Law scholars, including liberal Constitutional Law scholars. Your correspondent should read the amicus brief filed by Jack Balkin of Yale Law and others – whom no one could possibly describe as anything other than liberal – in the McDonald case.