The most mysterious right

The New Republic, in its review of "Out of Range" by Mark Tushnet delves into the Second Amendment discussion and the debate surrounding its plain text. And guess what! According to author Cass Sunstein, Tushnet's discussion of the Second Amendment is "even-handed and illuminating," even though the Second Amendment has been widely recognized by experts to protect an individual right.

In his brisk, even-handed, and illuminating discussion, Mark Tushnet concludes that "there's no definitive answer to what the Second Amendment means. " Those who find an easy answer are "blowing smoke." As a matter of the original understanding, Tushnet thinks that "the pro-gun-rights position is a bit stronger than the alternative." But if the original understanding is put to one side, and we consider "all the other components that go into good legal arguments," it turns out that the "pro-gun-control position is significantly stronger than the alternative." Taking the relevant materials as a whole, Tushnet thinks that "the gun-control story is slightly, but only slightly, better than the gun-rights one." Tushnet's punch line is that the real division is less legal than cultural: it involves not the founding era or the constitutional text, but the sharp and emphatically contemporary divide over the role and the meaning of firearms.

Of course. Leave it to the Brave New Republic to gush over such an interpretation and to cite a particularly onerous claim by former SCOTUS Chief Justice Warren Burger that "[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime." I'm sure Sunstein is hopping up and down for joy, because it's a "conservative" peddling this ridiculous lie, and a former Supreme Court Chief Justice, as well!

Not so fast. Dave Kopel has written an excellent essay, which acknowledges Burger's extensive knowledge of the Second Amendment's history, but calls him on the absurd assumption that the right to keep and bear arms somehow belongs collectively to the National Guard.

First of all, the National Guard is plainly not the "militia" envisioned by the Second Amendment. The Guard was created by Congress' war power, not by its militia power. National Guard weapons are directly owned by the federal government, which means that the Guard firearms cannot be the "arms" protected from federal interference by the Second Amendment.

More fundamentally, the National Guard is a uniformed, elite force. A "select militia" was precisely what the authors of the Second Amendment intended to avoid; they instead wanted a militia made up of all able-bodied males.

And why is it so clear that "we have no choice" but to maintain a large standing army? Except during wartime (Cold War included), the United States has never had a large standing army. Many reasonable people believe that a first-class navy and air force and nuclear capability are sufficient, without need for a huge standing army, in a world without Soviet imperialism.

Chief Justice Burger argued that the Second Amendment is obsolete because we "need" a large standing army, rather than a well-armed citizenry. Who says that the sole purpose of the Second Amendment is national defense, and not also personal defense? And why is the citizen militia obsolete? The citizen militia was called forth for home defense in WWII in Hawaii, Oregon, Maryland, and Virginia.

Kopel has said it all, so I won't try to top that. I do, however, take issue with the implication that because Burger was considered a "conservative," that moniker somehow lessens the credibility of the significant evidence that supports the view that the Second Amendment protects an individual right.

Additionally, the claim that the right to regulate firearms belongs to the states, even if the federal government is prohibited from infringing upon that right is bizarre to me as well. Does this mean that states have the right to limit free speech, stifle the press or impose any religion state legislators desire upon the people? And I won't accept the "there's no absolute right to free speech" argument either. That particular argument has been discussed and debunked numerous times. Much like fraud is not protected by the First Amendment, and neither is libel or slander, yelling "FIRE!" in a crowded theater is perfectly acceptable if there is, in fact, a fire. And there is no prior restraint of gagging you prior to entering the theater, just in case you might abuse your right to free speech. So enough is enough with that stupid argument.

If someone out there thinks the Bill of Rights only limits the power of the federal government, I invite state legislators to attempt to legally impose a state religion upon the citizens. See how far that flies.