I’ve been around the Internet since before there was an Internet. I cut my teeth on Bitnet, one of the Internet’s precursors (you youngsters can go Wikipedia that). From the beginning, I’ve seen more than my share of commenters on firearms-oriented websites who suffer from a severe lack of maturity. Over the last few weeks, I’ve been surprised at the level of intelligent discourse in many of the comments on such sites, particularly here on TTAG. I do want to address one particular line of thinking, though, that I have seen running through various conversation threads: the idea that openly thumbing our collective noses at the non-gun community is a good idea and in fact necessary to protect our rights . . .
It’s been said that a right not exercised is a right that is likely to be lost. I can’t argue with that sentiment and it particularly applies to the First Amendment, the meaning of which is not particularly vague. The Second Amendment, by comparison, is somewhat more open to interpretation.
My basis for this line of reasoning is simple. Freedoms of speech, religion and of the press are pretty clear and relatively uniformly observed nationwide. Sure, there are the occasional dustups but let’s face it, if you want to stand on a busy street corner in any city and say that this or that politician is a moron, etc., no Men In Black are going to show up to take you away (threaten the life of someone and that is a different matter). No state can pass a law restricting your right to do this.
On the other hand, with respect to the Second Amendment, each state makes its own laws regulating a person’s right to carry a firearm. So, from at least one point of view, it can be argued that the First and Second Amendments are not on the same level. One is actively protected by the federal government and the other…not so much.
Taking things a bit further, let’s explore the term, “right.” As gun owners in the United States, many of us believe that we have the God-given right to keep and bear arms and that right can never be taken away from us. Is this really true? Unfortunately, the wording of the Second Amendment is vague. It does not say, “The rights of the people to own and carry firearms shall not be infringed.” No, it 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.” So what does that mean?
No, put your hands down, I know what you think it means. I suspect however, that if I asked someone from the Brady foundation what that text meant, they would have a different answer. So, who’s right?
Well, that’s the crux of this discussion. Who indeed determines the correct interpretation? Let me dust off my copy of the Constitution and see. Yes, it looks like it is the role of the judiciary to interpret the law. But, a judge can interpret the Second Amendment in many ways. The two most common are, “The right of the people to own and bear arms shall not be infringed” and “people may only keep and bear arms as long if they are members of a well-regulated militia.”
Don’t laugh at the second one. That is essentially the position of Supreme Court Justice Stephen Breyer and three of his pals. Obviously, depending on which interpretation you take, the impact on our ability to own guns can be significant, particularly since I don’t know of any well-regulated militias around here that I could join.
Gun owners like to point to the Heller and McDonald cases as examples of where the U.S. Supreme Court agreed with our interpretation of the Second Amendment, but a closer look at the cases is instructive and frankly a bit worrisome. Heller was a 5-4 decision as was McDonald. This means that a one vote change could have dramatically changed gun laws in the United States.
In his dissenting opinion in the McDonald decision, Justice Breyer wrote, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self-defense. There has been, and is, no consensus that the right is, or was, ‘fundamental.” This is the position of the 4 member minority. If they ever become the majority, this will be their interpretation of the Second Amendment.
The problem is that there is no higher authority than the Supreme Court. If they were to shift their position, the only recourse we would have as gun owners would be to convince Congress to act and based on what I have seen over the past couple of years, don’t expect swift action.
What to do? I’ll explore that in Part Two.