How the NRA Rewrote the 2nd Amendment -- The Founders never intended to create unregulated guns

[MarvinGardens]

11. Of rights and straw men.

(Please, unless you have several eminent constitutional scholars (not mediocre conservative judges) to quote, please do not post your amateur or NRA or GOP arguments disagreeing with Burger and Waldman.

First of all, this is a democracy, and I have every bit as much right to my opinion on law and government as the most educated attorney or historian. I am not defending rampant ignorance or stupidity, but not all of us have time in our lives to become Supreme Court justices. And this is a discussion board where individuals can anonymously (or not) present their views. If you are of the opinion that only the views of legal scholars matter, then consider that this reply isn't really for you, but for others who may benefit from hearing a counterpoint to your views.

Not that I really need to disagree with the author of this piece much, nor with Burger or Waldman. So the 2nd Amendment was not interpreted (i.e. by judges, attorneys, and politicians) to protect an individual right to own a gun until recently. For the sake of this argument here, I'll just say, OK, I accept that. But it is now, right? Right? By the Supreme Court, no less. Oh, but you might say, this was a bullshit political decision, informed by a bullshit revisionist historical analysis. Do I read you right?

Well, just because an article of our Constitution was not interpreted in the past to protect an individual right, does not mean that it is illegitimate to interpret it that way now. The Sixth Amendment was not always interpreted to provide for a public defender. The Fourteenth Amendment was not always interpreted to outlaw segregation in public accomodations, protect the rights of whites and blacks to marry, or recognize a right to same sex marriage. Various types of speech were once prosecuted as obscenity, sedition, or desecration, but are now protected by the First Amendment. The Fourth Amendment did not always provide a "penumbra of privacy" that protected the right to an abortion, but it does now. Do you think that these modern interpretations are also wrong because they deviate from previous historical interpretations? It is my un-scholarly opinion that Plessy v. Ferguson was wrong and Brown v. Board of Education was correct. Do you think that Brown versus Board was wrong because it went against established precedent? I doubt it.

Anyway, sometimes rights are recognized when public opinion shifts. This is true of many of the above examples. From your cited article:

In the meantime, the “individual right” argument was starting to win in another forum: public opinion. In 1959, according to a Gallup poll, 60 percent of Americans favored banning handguns; that dropped to 41 percent by 1975 and 24 percent in 2012. By early 2008, according to Gallup, 73 percent of Americans believed the Second Amendment “guaranteed the rights of Americans to own guns” outside the militia.

Is this changing interpretation of rights political? Yes, yes it is. The Constitution is ultimately a political document

My arguments above notwithstanding, you could still argue that the Heller decision was poorly reasoned and incorrect, irrespective of it being a modern versus an older interpretation. Even if you successfully argued this and I agreed with your argument, it would not change my position on the right to keep a firearm being an individual right. Irrespective of the Second Amendment, I believe the right to keep a reasonable weapon for defense of one's home and family is a basic human right, an unenumerated right protected by the Ninth Amendment. Furthermore, I believe that the Fourth Amendment penumbra of privacy forbids the government from coming into my home to seize an inanimate possession of mine (guns, sex toys, drugs, etc.), if I am not using that object to harm anyone else, unless they have an extremely compelling reason to do so. Not only is this latter interpretation of the Fourth Amendment un-scholarly, but I recognize that it does not have mainstream acceptance. Nonetheless, it is my opinion, and I have a very expansive view of civil liberties.

For the sake of argument, let's say that you successfully defeated all of my rights arguments above, in the courts of law and public opinion. I would still argue for statute law to grant the privilege of owning a weapon for home defense to the vast majority of non-criminal citizens, because it is good public policy. The police can't be everywhere all the time.

Lastly, "The Founders never intended to create unregulated guns" is a bit of a straw man. I've never read anyone on DU arguing in favor of unregulated guns.