May 22, 2023

In Brief: AR-15 Bans Are (Still) Unconstitutional

The struggle to come up with a sound legal argument to ban a civilian rifle continues.

The Supreme Court last week declined to immediately intervene in a case against Illinois’s ban on commonly owned semiautomatic rifles with certain cosmetic features. Several states ban such rifles, and it’s high time the High Court defended the Second Amendment. Meanwhile, political analyst David Harsanyi, who’s written a book on the Second Amendment, explains why the Constitution has been offended.

First, he takes on the “emotional arguments” offered by a Bloomberg column written by Noah Feldman.

Throughout the piece, Feldman treats the Second Amendment as some kind of courtesy “extend[ed]” by the state, rather than an inalienable right that can only be limited in extraordinary circumstances. The best way to avoid this confusion is to plug the words “First Amendment” whenever you see “Second Amendment” and the words “newspapers” every time you see “guns.” Though perhaps these days that won’t help either.

The bigger problem, says Harsanyi, is a gross misunderstanding by Feldman and others of the Supreme Court’s 1939 United States v. Miller decision. He straightens out that understanding by explaining what Miller was all about, and why it actually undermines Feldman’s argument.

The problem is the court didn’t offer any broad ruling regarding the meaning of the Second Amendment. “Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons,” Antonin Scalia wrote nearly 70 years later in D.C. v. Heller. “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”

Harsanyi gets to the core of his argument after debunking Feldman’s dismissal of Heller as “reinterpreting the original meaning of the Second Amendment.

Heller did not reinterpret anything. The "well-regulated” in the Bill of Rights refers to an orderly civilian military force, rather than a rabble of men. It always has. It does not mean “regulation” in its contemporary understanding of the state micromanaging your actions from the top down with a bunch of rules, which would have been alien to that generation.

And the regulated militia mentioned in the prefatory clause of the Second Amendment doesn’t erase the operative clause of the amendment, which protects the individual’s right to “bear” arms — a right that virtually every notable figure from the founding era is on the record defending. There is nothing astonishing about it. Anyone who’s spent five minutes reading about Madison and the Second Amendment understands why he wrote it the way he did. Many states codified the individual’s right to bear arms in their own constitutions before the Bill of Rights was even written, most of them in much more explicit terms. No SCOTUS case has ever treated the Second Amendment as anything but an individual right. No Founding Father ever argued otherwise. The “collective right” is an invention of the 1990s.

You have a right to own an AR-15 because it is a gun in common use among ordinary citizens. There is nothing unusual about it. The most popular rifle in America isn’t even close to being the deadliest weapon in the country.

The AR-15 has never been a military weapon. It was sold to civilians before it was modified. But even if we accepted the left’s contentions that ARs were some kind of military super gun — a talking point that might well contribute to its popularity with homicidal nuts — Miller still doesn’t allow for a ban.

Read the whole thing here.

Start a conversation using these share links:

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!

The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service, are proud sponsors of the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, Folds of Honor, Honoring the Sacrifice, Warrior Freedom Service Dogs, Officer Christian Fellowship, the Air University Foundation, the Naval War College Foundation, and the Naval Aviation Museum Foundation.


“Our cause is noble; it is the cause of mankind!” —George Washington

Join us in prayer for our nation, that good and righteous national leaders would rise and prevail, and that division would be healed so we would be united as Americans. We pray also for the protection of our military Patriots, first responders and their families, and comfort for veterans who are suffering.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2023 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.