In a recent article, Professor Donohue from the Stanford School of Law stated the following in support of the proposition that the Second Amendment is really about restricting an individual’s right to bear arms. He stated:
“The founding fathers had no idea how powerful–and destructive–today’s weapons would become…”
Of all of the anti-gun arguments floating around today, I may dislike this one the most. In my opinion, those that push this argument have not truly thought about the state of Constitutional Law today. Even the US Supreme Court minces no words on the issue:
“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, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35–36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (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.”
D.C. v. Heller, (2008) 554 U.S. 570, 582.
Even the US Supreme Court thinks that you are being “frivolous” by using this argument.
By extension, if this argument were valid, where would that leave the First Amendment? There was no internet in 1798. If you wanted to exercise your freedom to speak, your choices were to stand on the street corner and yell, start your own publication (not likely), or write for an established publication. Those writing in widely distributed publications were generally well educated, and overseen by editors. This is likely the type of free speech the Drafters had in mind when setting forth the First Amendment.
Today? Kids have access to far-reaching social media, and actual deaths have been triggered by the advent of “cyber-bullying.” I’m pretty sure that this was not the free speech the Drafters were looking for. So…what? Do we see anyone arguing that the First Amendment should be restricted, or that bloggers / social media subscribers should submit to a background check? No? Well why not?
Because clearly the First Amendment was written to protect almost all speech, save a few exceptions.
And so it is with the Second Amendment – it was written to protect an individual’s right to keep and bear arms, with a few exceptions.