Every time there is a mass shooting, the same political scene unfolds. Voices on the left begin calling for “sensible public policy” on firearms. The hosts of The View lose their minds because evil Republicans won’t fix the problem. Democratic politicians haul in money while decrying Republicans’ failure to “prevent gun violence and save lives.” The president makes a speech insisting he respects lawful gun owners, before asking when the carnage will stop and demanding a host of “common sense” gun-control measures. Yes, the left wants background checks, red-flag laws, etc. But the reform they really seem to salivate over is banning supposed “assault weapons,” like the AR-15. The issue inevitably gets debated back and forth in the media. Nothing happens at the federal level. Then, after a few weeks, the issue fades.
Why this action-less cycle? Certain voices on the left claim that America suffers from a “disproportionate influence of small states,” caused by the equal representation in the Senate and the existence of the filibuster. This argument has been used in a variety of political situations over the years when the pesky middle of the country gets in the way of what the Blue Coasts want to impose. When liberals are honest, they know that this nation was never created to be a democracy. This “problem,” then, is not a problem at all; it is an intentional check on the majority’s ability to impose its will on the nation in all matters. Also, perhaps the constant failure to pass these elusive “sensible gun-control measures” is not simply a matter of unsuccessful, stymied legislative efforts. Perhaps the existence of the Second Amendment, and a United States Supreme Court willing to uphold it, are the real issues for the left.
While voices on the left push many false claims about the text and meaning of the Second Amendment, two in particular deserve mention.
First, one cliche always seems to circulate after these tragedies. It goes something like: “The Second Amendment says it is necessary to have a well-regulated militia. So, the Second Amendment protects the right to bear arms for militia members, not ordinary civilians.” It is always uttered as if it is an original thought that has never been considered.
But it has been considered. And, as the majority opinion penned by Justice Scalia in D.C. v. Heller in 2008 observed, the claim suffers from both a grammatical error and a historical one.
In the text of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State,” constitutes the preface. It is not an operative legal clause at all. A prefatory clause may give you the reason a writer has in mind for the clause that follows, but it does not limit what comes next.
For example, if there were a rule that “Proper decorum being necessary in church, the right of the people to wear fine dresses and suits shall not be infringed,” this would in no way limit the right to wear fine clothes to church-goers or to Sunday. The right to wear fine clothes would be the operative part of the rule. The first part announces the purpose, but the purpose is not a limit. If the Second Amendment read “The right of the people to keep and bear arms so that they can form a well-regulated militia shall not be infringed,” the conversation would be different, since purpose (forming the militia) would be tied to the right itself. But the language of the actual Second Amendment simply does not allow such a reading.
Then there is the historical issue with the definition of a militia here. Crafty progressives or unwitting civilians may opine that the militia refers to some kind of military force, or, at least, a state or local quasi-military force—something like the national guard or local police department today. If we have organized police forces and standing armies protecting us, they ask, isn’t the whole “militia” thing obsolete? The answer ought to be a resounding “No!” Justice Scalia’s opinion in Heller takes a deep dive into the historical context. In short, the “militia” at the time included all males physically capable of acting for the common defense, and was decidedly not a standing military. In fact, the Antifederalists at the time of the American Founding wanted the Second Amendment in place because they feared that the government would disarm the people and allow a standing army or select government-run militia to displace an armed populace. The citizen militia identified in the Second Amendment is meant to ensure that the people, and not government forces alone, are armed.
We should also address the asinine idea that the Second Amendment protected only the muskets and flintlock pistols of the 18th century and would not have covered “weapons of war” then or supposed “assault rifles” today. President Biden has repeatedly and falsely stated that the Second Amendment initially limited who could own a gun and what type of weapon one could own. This is clearly not true; it appears there was no law preventing 18th-century American civilians from owning a cannon after all. The Second Amendment itself places no limits on gun ownership, and there was no federal legislation on the issue for decades after the Bill of Rights was passed.
While the Second Amendment itself does not in any way limit firearm rights, most scholars concede, as did the majority opinion in Heller, that the right to bear arms is not absolute. If there is at least some room to regulate the details of when, where, and how the people may keep and bear arms, one key aspect of the discussion in Heller must be remembered. The Heller opinion restates a principle previously articulated in a Supreme Court case called United States v. Miller: the sorts of weapons protected by the Second Amendment are particularly those “in common use at the time.” Yes, in the 1790s, that was probably the musket and flintlock pistol. But what are the weapons “in common use” that warrant the particular protection of the Second Amendment today?
Handguns are the most commonly owned type of firearm; the most common caliber handgun is the 9mm. Among rifles, what is the most common? Bolt-action hunting rifles? The simple .22? Of course, the most commonly owned rifle in the United States is the AR-15. It is effective, easy to learn to use, and accurate, without requiring too much practice. And being fairly lightweight and with almost no kickback, it is an ideal home-defense firearm for women who are often uncomfortable with the kick of a shotgun.
This is where the left’s agenda crashes into the reality of the Second Amendment: The AR-15, demonized as an assault weapon by the left, is actually an ordinary firearm in common use. The president apparently also wants to add 9mm handguns—literally the most popular self-defense weapon in the nation—to the list of “high-caliber” firearms that ought to be banned. These are exactly the types of firearms the Second Amendment gives the people the right to keep and bear.
It is rare and almost admirable when someone puts their true objective in writing, and for the left to accomplish what it wants, it must repeal and replace the Second Amendment. Only then will we get the “gun control” measures that the left desires. Short of that, you will not see Congress pass these “meaningful common-sense gun-control measures” in the wake of a mass shooting. Congress will not ban the 9mm handgun nor the AR-15 as an assault weapon. You will only see political posturing, virtue signaling, name-calling, and fundraising; then it’s back to business as usual. Despite the constant barrage of noise about banning assault weapons, the left knows they can’t do it.
After much hyperbolic rhetoric about “common-sense gun control,” particularly banning assault weapons, the president has already essentially admitted defeat. He has already proposed an alternative: “[i]f we can’t ban assault weapons then we should raise the age to purchase them from 18 to 21.” Until we see a major movement on the left to amend the Constitution and repeal the Second Amendment, we should assume these political voices aren’t actually serious about the gun bans for which they advocate. And if the left does start an honest movement to repeal and replace the Second Amendment; well, this is still America. Good luck with that!
Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in The American Conservative, the Quinnipiac Law Review, and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.