“The overall point to be made is the Seventh Circuit did not relegate the Second Amendment to a “second-class right” as Justice Thomas claims. History refutes such a conclusion. The fact of the matter is the modern perception of the Second Amendment as guaranteeing broad firearm rights in both public and private is just that—modern.”
The false belief that the Second Amendment confers an (absolute) individual right continues to prevent us from regulating guns, with tragic consequences. Yes, Supreme Court Justice Antonin Scalia, writing for the majority (5), declared that it was an individual right based on an original intentist interpretation of the amendment. Therefore, we must abide by this interpretation as long as Heller is in force, but that does not mean that Scalia’s interpretation of the history is correct. One of the problems, among many others, with original intent as a method for interpreting the Constitution is the fact that justices are not historians. Too often original intent has been used to mask the individual preferences of the particular legal scholar. After spending years studying the history of the Religion Clauses of the First Amendment this fact has become all too clear.
If we are ever going to significantly decrease the senseless killings (as well as the large number of accidental deaths and suicides) that are made possible by the unregulated gun market, we need to debunk the Second Amendment myth that gun ownership is an individual right that can never be infringed. Gun regulation will not completely eliminate gun violence, but it can significantly decrease the violence (as it did in Australia).
Therefore, I want to include a few links by two prominent historians and one legal scholar who show why the Second Amendment fundamentalists are wrong:
- “To Keep and Bear Arms,”: This essay by Gary Wills is long, but worth it. He carefully and comprehensively destroys the arguments of what he calls the “Standard Model” school (i.e. the Second Amendment dogmatists who insist that the amendment confers to them an absolute individual right).
- The brief from the Pulitzer Prize winning historian Jack N. Rakove in the Heller decision.
- “How the NRA Rewrote the Second Amendment,” written by the author of The Second Amendment: A Biography, Michael Waldman. This essay deals more with the political movement that created the Second Amendment orthodoxy that now plagues us.
Please read and share these links!