I'm glad that Ms. Lithwick is willing to be honest about her irrational emotional bias when it comes to guns. I'd counter her:

"If you are going to read the whole Second Amendment with your thumb over the militia clause, you pretty much have to read Miller that way as well."

with my own:

"If you're going to read the whole Second Amendment with your thumb over 'shall not be infringed' then you might end up with the thousands of ineffective laws that we have related to firearms in this country"

She claims to be willing to argue the pros and cons of various regulations; speaking on behalf of gun owners, we think the discussion would be more reasonable if it were framed in terms of a fundamental right (Say, like the free-speech parts of the first amendment are) and if some of the more irrational, emotion-based material stays out of the debate. (Like "no one has a reason to own that kind of gun")

I believe the reason she feels like she's been lobotomized is that she's been ignoring all the pro-rights scholarship that's been delving into such things as what the framers might have actually meant when they wrote the militia clause. The guys over at the Volokh conspiracy have noted that the court appears to have really done its homework. Included in that homework, and in the decision, was undoubtedly a consideration of the circumstances around Miller, which, by modern standards, leave something to be desired.

I hope when all this settles down, gun rights end up like abortion rights, with generous constitutional protections; probably there will always strident advocates on both sides working for or against extreme cases. I'd like to be as free to legally carry a concealed weapon on the streets of New York City as a 17 year old in Oklahoma is to obtain an abortion. We can argue about machine guns and partial-birth abortions as potential areas of compromise.

Dahlia, get Emily to take you shooting sometime. (Or at least re-read her human guinea-pig article about it) It's fun, it's essentially a morally-neutral act, you'll probably find your squeamishness evaporate quickly, and you might end up feeling a little silly for holding on to the mystique of the whole "gun thing".

DudeMike:

"If you're going to read the whole Second Amendment with your thumb over 'shall not be infringed' then you might end up with the thousands of ineffective laws that we have related to firearms in this country"

That's a weak argument. It is only the pro-gun lobbyists that want to parse the ammendment. It reads, in full:

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.

As a big fan of aggressive gun control, I'm fine with the ammendment as written, however you pro-gun types prefer this:

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.

How is it that you can blatantly ignore the beginning of the statement? Are you unaware of the basic linguistic principal of the qualifying statement?

Ummm...when the Bill of Rights was written, the phrase "well-regulated militia" concerned how well trained and militarily effective the militia was, not who commanded it or who had authority over it.

You could look it up.

alittlesense:

Ummm...when the Bill of Rights was written, the phrase "well-regulated militia" concerned how well trained and militarily effective the militia was, not who commanded it or who had authority over it.

You could look it up.

...but did not distinguish between a militia and a pre-militia group of individuals? The militia is widely considered in present form to be the National Guard. The founding fathers also did not experience in the remotest way either the unchallenged sovereignty and security ofthe present-day US or the scope of big-city violence. If they had, as pragmatists, they would no doubt have been clearer and more explicit in their language. As intelligent men, they also were probably counting on us to routinely review and as necessasry, revise the specifics of our laws to comport to the realities of the present day. I don't think that they would respect those justices that pretend to bow at the altar of originalism; the silliest of 'religions' for people of reason.

The militia is widely considered in present form to be the National Guard.

In the 1700s, the militia included most able-bodied men. Today, under federal law, it still does.

One of the duties of the militia was, if necessary, to oppose a federal army. The National Guard, a federalized force, is not suited to this task.

The founding fathers also did not experience in the remotest way either the unchallenged sovereignty and security ofthe present-day US or the scope of big-city violence.

Neither did the founding fathers experience radio, television, the telephone, the Internet, world war, Communism, or radical Islam.

As intelligent men, they also were probably counting on us to routinely review and as necessasry, revise the specifics of our laws to comport to the realities of the present day.

Yes, that's what the amendment process is for.

Americans have enjoyed the right of gun ownership for over two centuries. If you want to repeal this right, there is a standard method of doing so. Amend the Constitution. Good luck with that.

Of course that is a non-starter, so instead you want to parse 18th Century grammer to get your way. Millions upon millions of law abiding citizens own guns. See what happens if you try to take them away from them. Civil wars are fought over less. In a civil war over gun ownership rights, I wonder who would win. I'm guessing the side with all the guns.

So threat of civil war is your best argument against the repeal of the Second? Sounds more like an argument for the other side...

tjcerveza:

Millions upon millions of law abiding citizens own guns. See what happens if you try to take them away from them. Civil wars are fought over less. In a civil war over gun ownership rights, I wonder who would win. I'm guessing the side with all the guns.

If they are really law abiding citizens, then they will abide by those new gun laws whatever they entail or else seek to lawfully repeal the laws/amendment/whatever. Otherwise, they were only abiding by the laws they agreed with. That's supposed to somehow be honorable? Sheesh...

Dave S. I would actually agree with you, the problem is we don't really need the amendment, like the right to privacy the right to protect yourself is a right that is implied without specifically mentioning it. Its clear that the framers of the constitution found the idea of a gun ban so rediculous that they never directly stated it. Also, you can read the slate article that discusses another argument for gun-rights. Anyway, the right to bear arms argument is overrated, and only used because there is absolutely no way to prove what the original framers meant. Zero. Back then, basically everyone was in some sort of militia, now the Gov't has banned private militias, and no the national guard and other units do not count as a militia. In the constitution it mentions the army as the army, not as a militia.... so the argument that only federal or state soldiers are allowed to bear arms is a wasted argument, they would have said that if they meant that. However, it is likely the founding fathers were not discussing the right of a citizen to bear arms either, because when it was made they were at war with England, and surrounded by countries that could potentially be hostile, in other words a safe, non-combat citizen did not exist, so the idea of a regular joe that would never need to use his gun was absurd to them. So in a sense,you are both right, its really a worthless peice of writing, because neither the extremely liberal view, that it means nothing and only the army should have weapons makes no sense, but neither does the idea, that they thought everyone should have a gun (At least, if you look strictly at just this ammendment) However, if you read the entire constitution, a pattern of expectation is created, it is clear that the framers expected all men to be armed, the only question is, does the fact that they lived in a dangerous situation, mean that the expectation should still apply to us today? I say yes, to protect us from the Gov't, you can believe it is no. There is no clear answer, just like there is no right answer to the right to privacy, face it, technically it does not exist, that doesn't mean it shouldn't be a right. Repeal the right to privacy, that protects abortion, and I'll seriously consider your argument against gun right... actually I wont, but until you repeal the right to privacy you have no right to complain about the right to bear arms, as looked at throughout the entire constitution.

patron002:

Back then, basically everyone was in some sort of militia...

However, it is likely the founding fathers were not discussing the right of a citizen to bear arms either, because when it was made they were at war with England, and surrounded by countries that could potentially be hostile, in other words a safe, non-combat citizen did not exist, so the idea of a regular joe that would never need to use his gun was absurd to them....

However, if you read the entire constitution, a pattern of expectation is created, it is clear that the framers expected all men to be armed...

The whole of your post is reasonable enough but the excerpts above sound overstated at best. There were in fact tens of thousands of Quakers, Mennonites & Anabaptists who were pacifist and steadfastly refused to bear arms, much to the dismay of Gen. Washington et al who needed every abled-bodied soldier they could find. Nevertheless, there were thousands of regular joes who never joined militias nor perhaps even owned a gun (unless they needed one for hunting) and this fact was certainly known by the framers (some of which were Quakers themselves). So I don't buy your last point.

The rest of your argument is fairly solid, especially your correct contention that there is no real way to know what the framers were thinking back then. Further, even if there was, why would such thoughts be even remotely relevant to our society some 230+ years later? It's our responsibility to make decisions based on today's reality and a healthy compromise is certainly possible. The only disigenuous act IMO is to hide behind the skirt tails of originalist extrapolation in this matter. As you said, its not possible, and it certainly wouldn't be any more relevant to today than many our laws will be in the year 2240.

A very interesting debate over the actual extent of gun ownership in Revolutionary America was summarized by in 2003 in the William and Mary Quarterly by Robert H. Churchill in his article, "Gun Ownership in Early America: A Survey of Manuscript Militia Returns." Excerpt and link below... (I believe access to the entire article requires a membership.)

IN 1996, Michael Bellesiles's Journal of American History article on gun ownership in early America startled many early American historians. Bellesiles found that probate inventories and militia records from the eighteenth and early nineteenth centuries strongly indicated that guns were scarce in early America and that gun ownership was "exceptional." Controversy has since raged over Bellesiles's research, which he published in more elaborate form in Arming America: The Origins of a National Gun Culture. Critics have focused primarily on Bellesiles's use of probate inventories. Yet Bellesiles's research was innovative in its use of militia returns, documents seldom cited in the military histories of the period. Bellesiles argues that available returns provided additional evidence of guns' scarcity.1 1 The term return is a generic military reference to reports of information requested by superior officers and by the civil officers of the colony or state. Typical categories of reporting included results of officer elections, records of provisions consumed, and weekly reports of men fit for duty. During the period from the onset of the Revolution to the end of the War of 1812, provincial and state governments also began to demand accurate reports of the military readiness of their militias. Such returns, showing the size and armament of specific military units, are often referred to as strength or equipment returns. At least four states mandated that militia officers make annual strength returns of the units under their command during the Revolutionary War. The Militia Act of 1792 extended this reporting regime to require annual strength returns from every militia commander in the nation.2 2 These strength returns, offering a tabulation of men at each rank and the arms and ammunition in their possession, can yield valuable insights into the prevalence of gun ownership in early America, but only if used with considerable caution. Where a significant portion of the militia of a state made returns of strength and arms, these returns allow us to ask questions about gun ownership of a much larger population than is covered by existing surveys of probate inventories. Further, in an era in which the militia enrolled most free white men, militia returns recorded arms possession by younger, poorer men, who were often under-represented in surveys of probate inventories. They thus serve as a useful complement to probate records. These records also permit comparison of gun ownership rates across region and across time. Finally, gaps in record keeping can give us insights into the extent and limits of the state's power to track and command the persons and property of its citizens.

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