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.
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