Many of the gun rights advocates find friends in the legal profession with a group that views themselves as “strict constructionists.” This means they try to look at the Constitution as it is written and not construe any meaning beyond the words of the Framers. Just saying, this group of “strict constructionists includes some members of the U.S. Supreme Court like Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Coney Barrett. This group is adamantly opposed to the notion that the genius of the Constitution is that it can adapt to the present times, or any time for that matter. They strongly refute the notion that the Constitution is a living document that has been able to adapt to the times. They call this “legislating from the bench.” I always wonder how this reconciles with the amendment process, but I am not going there right now.
Let’s look at what the Framers were worried about when they drafted the 2nd Amendment. The 2nd Amendment in the Bill of Rights reads: “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.”
What were the Framers worried about? It seems reasonable and almost a “duh” moment to say the Framers were thinking about the war they had just fought with Great Britain. If I look at the history, it was really helpful when some able bodied men could assemble on the greens in Lexington and Concord and oppose the King’s army with some flintlocks and squirrel rifles. Given the language of the 2nd Amendment, it starts out with the statement of “A well regulated Militia, being necessary to the security of a free State…” The Framers were worried about a future event like the Revolutionary War and the necessity of a citizen’s army, “…A well regulated militia…”
If I am to join the camp of the “strict constructionists,” then this is where my interpretation of the Constitution begins and ends. My legal philosophy does not permit me to look beyond the times of the Framers in applying the Constitution. Yet, this is just what has happened with the 2nd Amendment and the right to bear arms in our society. The Framers never invisioned the advent of assault rifles and a gun industry/lobby that would grow up and be willing to literally fight to the death over the right to possess and sell us all of this lethal weaponry.
The 2nd Amendment is not the paramount right in the Constitution. It does not give us the right to cancel each other’s rights. It does not give us the right to make our country into a killing field. We need to stop this and it will mean limiting the right to bear arms as it is viewed today. It is not an absolute right and we have limited its scope before. The easy example of this is knowing during Prohibition machine guns like the Thompson submachine gun often seen in the ganster films were made illegal for ordinary citizens to own. They are still illegal. We do not allow people to make and own bombs. We can restrict the right to bear arms. We banned assault type weapons in 1994 and the law expired in 2004. It can be revisited and renewed as well as other common sense gun restrictions.
Like so many of our problems, the first step is to admit to and recognize the problem. We can come together to solve this problem and others too. Like I just said, there is a “first step.” We cannot seem to get that far with our current politics – such a tragedy we visit on ourselves and our children.