Beto O’Rourke (AKA “The Loser”) seems to be talking the role once filled by Eric Swallwell as the gun control candidate. “Hell yeah, we’ll take your AR-15's,” he bragged at the most recent debate.
A common argument made by gun-control activists is that it is us who are reading the 2nd Amendment wrong and that it does allow some forms of gun control.
For the sake of argument, we’ll limit the understanding of the 2nd Amendment to that of the Constitution and its time, something I tend to not like doing. I’m actually doing a favor to those who support gun control by doing this — as it means I am not able to just bring up District of Columbia v. Heller or McDonald v. Chicago.
So what does the 2nd Amendment say? Well, I happen to own a pocket constitution, and according to that it says the following:
A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms. shall not be infringed.
However, that is not what the 2nd Amendment actually says. It was written as the following:
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
Yes, those are the same words, however, one thing is missing in the second one — two commas. The more common version was an error from when the 2nd Amendment was written on the now famous parchment — which we have no reason to believe wasn’t just an honest mistake. Because parchment is easier to read than old ink, people tend to assume two more commas are there then there actually are.
This is important because, from a linguistic standpoint, the first half of the sentence (anything before the comma) does not have any legal effect on everything after the comma. This is important because a common argument (which I’ll dissect more in a minute) says that the first part — “a well regulated Militia” — means gun control is allowed. However, “Being necessary to the security of a free state,” was meant to show that the 2nd Amendment applied to women, as many women fought in the American Revolution. So for this argument to make sense we’d have to believe that the founders felt they needed to put that the state could regulate firearms — as long as it wasn’t based on sex.
“A Well Regulated Militia.”
What does “a well regulated militia,” mean exactly? According to gun control advocates, it either means gun control is allowed but an outright ban is not, or that only the militia (or the government) has the right to keep and bear arms but citizens do not.
The first thing to keep in mind is that “regulated,” does not mean the same thing today as it does when the Bill of Rights was written. The term “regulate,” did not mean regulation in the way we think of it today until the progressive era.
Regulate at that point meant “to make regular.” “Well regulated,” basically meant “quite regular.”
But who was this militia, and why must it be made so regular? The idea of the anti-federalists — those who wrote the Bill of Rights out of fear the Constitution gave the federal government to much power, was that standing armies were overall a very bad thing. This is why the Articles of Confederation and Perpetual Union (written mostly by anti-federalists) did not allow the federal government to have a standing army.
The militia was simply a group of people who were fighting for defense. For example, most of the groups who fought in the Revolutionary War were not federally recognized armies, instead, they were local and state armies made up of the civilians — or militias.
This is also why the argument that “the 2nd Amendment only gives the government the power to own guns,” is nonsensical. In this context, “militia” and “people” were basically synonymy. As such, they’d be saying “the people,” would be limited to only a couple of people, leaving much of “the people,” out.
While on this argument, it also ignores any understanding of the Constitution. The powers of government are laid out in Article 1 Section 8 of the Constitution. Anything that could be considered Gun Control is not mentioned once in that section.
For that matter, this idea goes against any understanding of history. The Bill of Rights was meant to limit the power of the federal government, because, once again, it was written by anti-federalists who were worried about the amount of power the federal government got in the new Constitution. While some of the other amendments have qualifiers showing they do not apply in some cases (The third amendment only applies “in times of peace,” and the seventh amendment only applies “where the value in the controversy shall exceed twenty dollars.”) no other amendment expands power of the federal government like the second amendment would under list logic.
Is All Gun Control Unconstitutional?
While the title of this article may lead you to say yes, it is actually a little more complicated than that.
Boston, for instance, had a law that no gun could be loaded while in someones home. Mind you, this was because they had a tendency to explode causing a giant fire, but that’s besides the point.
This would mean that local governments are allowed to put some forms of gun control into place. A view which is backed up by the fact that the Bill of Rights was designed to limit the federal government, and even promised strong local governments with the 10th Amendment.
Thomas Jefferson himself also banned firearms on the University he opened in Virginia. Meaning yes, Walmart is allowed to ban open carry in its stores.
However, the kind of federal gun control Beto wishes to put in place is certainly unconstitutional. Even if he, as governor or mayor, may be allowed to do similar things in other contexts.