Authors: Glenn Beck
Sounds like fun. How would you like to have been a business owner in that area armed with nothing more than a baseball bat or a single-shot pistol? Think you’d stand much of a chance against a violent mob? And what about those who were trapped in the aftermath of Hurricane Katrina, when armed looters ruled streets that had been virtually abandoned by police?
“
It’s downtown Baghdad,” tourist Denise Bollinger said about New Orleans. “It’s insane.”
“
The looting is out of control. The French Quarter has been attacked,” Councilwoman Jackie Clarkson said. “We’re using exhausted, scarce police to control looting when they should be used for search and rescue while we still have people on rooftops.”
If you’re caught in the middle of that, what do you do—just dead-bolt your door and hope for the best? Maybe pull out that antique six-shooter against a violent gang of looters?
In the New York City area, Hurricane Sandy proved to many who had previously scoffed at the so-called survivalists just how
fast civilization and the rule of law can break down. After just a few days of no electricity, gas lines began to stretch for miles. In New Jersey, state troopers were deployed to all stations along the major interstates to calm nerves. In New York City
a man had a gun stuck in his face at a Queens gas station after complaining that another customer had cut him off in line. A Lowe’s store manager in New York said, “
You see the worst in people at a time like this. We’re trying to be there for them, but they get angry when they can’t get batteries or flashlights.”
That was less than a week without electricity—what happens in a real, long-term disaster? What happens when food supply lines get cut off, or an epic storm cuts a large swath of people off from the outside world? Would you rather be hunkered
down with a handgun holding a maximum of seven rounds (which is now the limit in New York), or an AR-15 with a magazine large enough to ensure that your entire family is protected?
I could go on—but here’s the thing: I don’t have to. As of now this is still a free country and I have a right to defend myself and my family as I see fit. I do not need to come up with a list of justifications to make New York media elitists like Piers Morgan, Rachel Maddow, and Jon Stewart happy.
All I need is the Second Amendment—just the way it is.
“I don’t think the Founding Fathers had the idea that every man, woman, and child
could carry an assault weapon.”
—MAYOR MICHAEL BLOOMBERG
,
December 16, 2012
“When they passed the 2nd Amendment, they had muskets. It took 20 minutes to load one, and half the time, you missed, OK?
The 2nd Amendment didn’t take into account assault weapons . . . . ”
—DEEPAK CHOPRA
,
December 21, 2012
“[T]hey always hide behind the Second Amendment. They’re fabulous at doing that. But
the Second Amendment does not give you the right to bear any kind of arm. And technology has changed. And, of course, the design has changed. The proficiency of the manufacturing has changed.”
—ED SCHULTZ
,
December 19, 2012
This is a pretty popular argument that’s made all the time by those who really want to click their heels together three times and pretend that the Founders were imbeciles who had no clue that technology would ever advance. Fortunately, it’s also an argument that’s been roundly rejected by a little group called the United States Supreme Court.
In the landmark 2008 ruling
District of Columbia v. Heller,
the Court observed:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001),
the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
(emphasis added)
That is such a clear and resounding quote that it’s probably counterproductive to even attempt to add to it, but there are a few other things that the mayor, Deepak, and Ed would be wise to understand.
It is true that the people who wrote and ratified the Second
Amendment did not specifically intend to protect the AR-15 or other modern-day weapons. It’s also true that there was no specific intent in the First Amendment to protect the right to say whatever you want on the Internet or to broadcast ridiculous opinions on MSNBC. And when our Founders wrote the Fourth Amendment they had no idea that they’d someday be protecting the right to talk privately on a cell phone (although whether or not the government is actually respecting that right is for another book).
Anyone who claims that weapons like semi-automatics are so modern and unique that the Second Amendment does not apply to them would also have to believe that the First Amendment protects only writing done with quill pens on parchment paper, since those were the norm back then. How could we expect the Founders to have ever imagined the world we live in today?
We couldn’t—but there is a good reason why the Second Amendment was not written to say “the right of the people to keep and bear muskets, flintlock pistols, and swords”—the types of weapons that were common in 1791. The Founders, far from being the idiots the media paints them to be, knew that technology would evolve. That’s why they wrote the amendment to protect “arms” as a class and it’s why the Constitution as a whole defines a relationship between individuals and the government that is applied across time—no matter what technology eventually brings us.
Let’s go back to the First Amendment to illustrate what might happen if we were to take the Bloomberg/Chopra/Schultz view. At the time this amendment was written,
a skilled printer could produce 250 sheets in two hours. Today, a modern newspaper printing press can
produce 70,000 copies of an entire newspaper in an hour. And, with digital publishing, a newspaper article can be read globally within minutes after it is written.
One consequence of this technological evolution is that an irresponsible media can cause far more harm today than it could in 1791. For example, in 2005,
Newsweek
published a story claiming that American personnel at Guantánamo Bay had desecrated Korans belonging to prisoners there. The magazine eventually retracted the story, but it had already spread worldwide, setting off riots in six countries
and resulting in the deaths of at least seventeen people.
Had
Newsweek
been using eighteenth-century printing presses, the false story would have been read by several thousand people confined to a small geographic area. It would have been months—if ever—before the
Newsweek
issue with the false story was read by anyone in Pakistan or Afghanistan.
This is the same basis upon which the Bloomberg/Chopra/Schultzes of the world argue that we should ban innovations in the firearm industry, like semi-automatic rifles and large-capacity magazines.
Look at the damage they can inflict!
these people argue. But that point of view is held only by people who have no respect for the Second Amendment and its key role in preserving freedom. After all, if you believe in the Second Amendment as strongly as you believe in the First, then these kind of innovations aren’t dangerous—they’re necessary. A mass printing press or a racist Internet blog in the hands of a madman can inflict serious harm on society; but banning either of those things inflicts much more.
Those who believe that freedom of the press is a basic tenet of a free society look at things differently. Instead of opposing any change that makes the press more “lethal,” they embrace it.
More speech, not less.
That is common sense to most progressives—yet they can’t seem to bring themselves to apply that same standard to the very next amendment.
Aside from theoretical debates about the application of freedoms
across time, the assumption about what our Founders knew about guns at that time is totally wrong. While weapons that could fire multiple shots without reloading were crude, they were not unheard-of and it would not take someone of the intelligence of James Madison to realize that they were the future. As professors Clayton Cramer and Joseph Olson pointed out in their paper “Pistols, Crime, and Public Safety in Early America,” “Repeating, magazine-fed firearms date back to at least the 1600s; concealable ‘pepperbox’
handguns firing five to seven shots without reloading were in use by the end of the eighteenth century.”
There was still plenty of room for improvement in multi-shot guns, and those improvements were eagerly anticipated. As Cramer and Olson wrote, “In 1791, it is clear that the goal of multi-shot firearms was on the mind of gunsmiths, inventors, and shooters . . . .
Guns were in hand and getting better with every generation. Inventors knew where they wanted to be . . . . ”
It was only a few years after the Bill of Rights was ratified that a big change came to American firearms. In 1798, Eli Whitney became the first American industrialist to secure a government contract
for mass production of firearms (ten thousand units) using interchangeable parts. Suddenly, gun making was no longer a one-at-a-time business of craft production.
By the early nineteenth century, interchangeable parts were used routinely and Whitney’s “American system of Manufacture” was soon being copied around the globe. The United States, whose main exports up to that point had been crops and other raw materials, entered the industrial revolution with guns blazing—literally.
Firearms quickly became America’s first mass-production export.
The nineteenth century saw enormous improvements in firearms technology—much faster loading, more reliable ignition, more and better multi-shot firearms. Before the twentieth century
dawned, semi-automatics were well developed and ammunition had taken the modern form that we still see today.
As far as we can tell from the historical record, nobody ever asserted that these improvements in firearms technology somehow meant that the Second Amendment would no longer apply. And that’s because nobody was dumb enough to believe that to be true.
“For a hundred years, the Constitution was interpreted to mean that state militias, essentially state police, had a right to bear arms, because that’s what the first half of [the] Second Amendment says. But, as of 2008, as a result of years of lobbying and years of Republican appointees to the court, in 2008, the Supreme Court
said individuals have a right to bear arms under the Second Amendment.”
—JEFFREY TOOBIN
,
December 18, 2012
If constitutional law were a game of poker, Jeffrey Toobin would be a world champion. He is able to easily bluff when his hand is terrible, and he can do it with complete seriousness and conviction. He’s also sly. If the game isn’t going in his direction, he’ll look for some loophole he can use to change the rules.
I have nothing against Toobin personally, but I do have something against revisionist history. You’ll notice, for example, that Toobin specifically used the phrase “For a hundred years” at the start of that quote, meaning that he’s talking about the time from 1908 through 2007. But the Second Amendment was adopted in 1791. What happened to those 117 years from 1791 through 1907? Should we just pretend they don’t exist? Toobin doesn’t say.
No wonder. From the ratification of the Second Amendment through the end of the nineteenth century, nearly everyone—American courts, legal scholars, and the public—understood that
the Second Amendment protects an individual right to keep and bear arms. The concept of a “
a well-regulated Militia” was very important, but it was understood that a militia could exist only if the people from whom it would be drawn possessed their own arms and had plenty of opportunity to use and practice with them.
But let’s put all of that aside for a moment and play by Toobin’s rules. We’ll assume that the first 117 years after 1791 don’t count and we’ll look
only
at the century before the landmark 2008
Heller
decision.
Toobin believes that the Second Amendment protects a right belonging to state governments rather than to individual citizens. This theory was popular for part of the twentieth century, especially among uninformed talking heads and those with such a white-hot hatred for gun ownership that they could not fathom the Framers’ wanting individuals to own arms. It was not, however, very popular with the Supreme Court.
Let’s start by taking a closer look at
Heller.
The five-justice majority (led by Justice Scalia) followed what is called the “standard model” of the Second Amendment—essentially that it protects the right of law-abiding persons to have firearms for legitimate purposes, especially for self-defense.
The four dissenting justices (led by Justice John Paul Stevens) instead utilized what is called the “narrow individual right” theory, which says that the Second Amendment protects an individual right, but only in connection with service in a well-regulated militia. The
Heller
dissenters did not clarify the extent of that right, except to say that they believe it does not include owning a handgun for personal self-defense.
Justice Stephen Breyer wrote a dissent that was joined by the three other dissenting justices: “[B]ased on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1)
The Amendment protects an ‘individual’ right—i.e., one that
is separately possessed, and may be separately enforced, by each person on whom it is conferred.”
In other words, all nine justices, including those who were not, as Toobin put it, “Republican appointees,” agreed that the Second Amendment protects some sort of individual right. Yet, according to Toobin, this was apparently the first time in the last century that anyone had interpreted it that way. That just doesn’t add up. So let’s take a look at the history and try to find the truth.