Can We Use The 2nd Amendment To Regulate Guns? We Sure Can.

Today our friends at The Trace are marking the 10th anniversary of the Heller decision with an interview about the impact of the decision with Eric Segall who teaches Constitutional law at Georgia State. The gist of the interview is that while the NRA scored a major victory by getting the Miller decision reversed, gun-control advocates could also breathe a sign of relief because Scalia’s opinion still gave government broad authority to regulate guns.  And since Heller, the ability of the government to maintain its regulatory authority has been challenged again and again, but the basic ability of public authorities to decide whether guns are a risk to community safety has remained intact.

2A            Segall’s incisive and accurate comments notwithstanding, the post-Heller gun ‘rights’ discussion always seems to avoid what I consider to be the most important issue embodied in the text of the 2nd Amendment itself. The relevant text says: ‘the right of the people to keep and bear arms shall not be infringed.” Scalia’s 20,000-word majority opinion spends 19,950 words on a textual, historical and legal analysis of the words ‘keep’ and ‘bear.’ But his concern about how to define the word ‘arms’ covers only 50 words and wasn’t even mentioned by the minority opinions filed by Stevens and Breyer in the case.

The reason that Scalia didn’t spend any time discussing the meaning of the word ‘arms’ was that he and his Supreme Court colleagues all agreed that the 2nd Amendment referred only to weapons that are in common use today, which means that what are referred to as ‘weapons of war,’ i.e., military guns, aren’t covered by anything having to do with the 2nd Amendment at all. This is all well and good except for one little problem entirely ignored by the Court, namely, that most of the civilian-owned guns which are currently used both for self-protection as well as for committing gun violence happen to have been designed for the military and are still used by military forces both here and abroad.

The most popular handgun sold in the United States is manufactured by Glock, which was designed for the Austrian Army, and is now carried by American troops in the field. The gun which replaced the U.S. Army’s historic sidearm, the Colt 45 pistol designed by John Browning in 1907, is the Beretta 92, which is also a favorite handgun sold to civilians throughout the United States. Last year the Army phased out the Beretta 92 and replaced it with the Sig P320; the manufacturer celebrated the award by immediately making and distributing to wholesalers and retailers 50,000 units of the exact, same gun.  And by the way, the Colt 1911 pistol, which was the Army’s official sidearm for more than 60 years, has also probably been the single, most popular handgun ever to get into the hands of all those gun nuts who now have Constitutional protection to keep any non-military handgun in their homes.

The bottom line is that there is nothing in the Heller decision preventing public authorities from banning just about every, popular handgun model based on what the Heller decision actually says and doesn’t say. The one time that a public authority actually banned the ownership of a military-style weapon because it was too lethal to be kept around, was when the town of Highland Park passed a ban on AR-15 rifles after Sandy Hook, a move now being considered in other Illinois communities as well. The Highland Park decision was appealed up the judicial ladder but was upheld at the Circuit level and the SCOTUS refused to intervene. Less-restrictive bans on AR rifles in CT and NY have also been upheld.

For all the talk about how the gun industry has been exempt from consumer product review and protected from torts, when the issue of regulation turns on the lethality of their products, the gun ‘rights’ gang hasn’t done very well. When our friends in the gun-control community sit down to plot their strategies, they should keep this in mind.

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3 thoughts on “Can We Use The 2nd Amendment To Regulate Guns? We Sure Can.

  1. Before Heller, one could have made this same argument. Now, after Heller, there is protection for types in common use… balanced against dangerous and unusual.
    And, silly me, I suspected all along that the main goal of the gun control peyople was to make it illegal to defend against a mob by banning anything that shot more than once. How paranoid of me.
    Just as Maxine Waters wants to send mobs to the homes of her opponents.

  2. It would seem to me that every weapon you mentioned is “in common use at the time”. Indeed, the Heller decision pretty much punted on what was “dangerous and unusual” vs. “in common use”, leaving it to local control (and maybe that is a good thing). Aside from that, one does not, as Gary Wills once said, “bear arms against a rabbit”. Arms is in the context of a military term, i.e., the point of the 2A was not to hunt or drive off your neighbor while he was stealing chickens, but to be able to be called to arms with arms suitable for the common defense. So the notion that it was about muskets then is somewhat irrelevant as it would be about ARs now.

    That said, there is nothing in the 2A that historically has prevented regulation (Winkler notes that in his book on the history of early American gun control) and indeed, as you say, what exactly does “infringe” mean, anyway?

    I think at some point SCOTUS has to do a better job at a baseline that leaves less to community imagination, i.e., draw a line in the sand similar to Roe v Wade or Obergefell v Hodges. Perhaps in light of all the scholarship that has come out since Heller and McDonald, that will someday happen. The current rush to the political extremes is bizzare.

    And by the way, Mike, thanks for posting those periodic links to 2A academic conferences.

    • I really think the “In Common Use” was to prevent this ruling from attacking ALL gun control laws, as it was overall a very narrow case on just the “Keep” part of the second Amendment, not the “And Bear” or even the “Arms” part.

      the “Common Use” IMHO was simply there to keep Dick Heller’s .22 revolver from overturning the entire NFA and make Machine Guns and Artillery pieces protected items. Just as the “Reasonable Restrictions” was there so Dick Heller and his .22 revolver didn’t invalidate every concealed carry license structure in the nation.

      And don’t get me wrong, I personally think the NFA is unconstitutional, as is issuing permits, and therefore taxing the Bearing of arms in public. Also given the number of states that are now constitutional carry, and the entire lack of news stories from them of all the problems that happen when you stop putting police between people and their right to carry firearms, The same with the NFA given all the workarounds that have been developed to allow people to legally own firearms that approximate NFA items without the need for taxation and registration.

      The worst we have is the Las Vegas shooting with a bumpstock, which is not only an anomaly, but a very strange case that raises more questions than answers.

      Still the court said what they said, and if we’re going to talk “in common use” what is more in “common use” than AR-15s and double-stack polymer pistols.

      And note that I am, as is our host Mike, a Massachusetts resident where those firearms are essentially illegal.

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