The NRA is at it again. They want the Supreme Court to read the Constitution the way they do, to agree that the Second Amendment permits minors to carry guns outside the home. The story reads, in part:
The Second Amendment, at its core, spells out not one, but two, rights when it protects “the right of the people.” There is a right to “keep” a gun, there is a right, to “bear” a gun. There is an “and” between the two in the text, so that might well be taken as a significant indication that these are separate rights.
The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home. But it has refused repeatedly since then to take on the question of whether that right exists also outside the home. If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.
The National Rifle Association, and some of its members, are now pressing the Supreme Court to answer that question. They are doing so in two cases testing whether the federal government and the states can restrict the rights of minors to possess a gun outside the home. The Court is expected to take its first look at those cases later this month, to decide whether it will hear either or both of them. The federal government, once again, is urging the Court to bypass those cases, as it has done with perhaps a half-dozen others seeking clarification of the Second Amendment’s scope.
In a case from Texas, the NRA’s lawyers have reduced to elementary constitutional logic the question of what a right to “bear” guns means: “The explicit guarantee of the right to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did not protect the right to ‘bear’ arms outside of the home, where the Amendment already guarantees that they may be ‘kept.’ The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus.”
Now there are two things about this that strike the attentive reader right away: the NRA wants kids of any age to be allowed to carry guns and they want them to be able to do it outside the house. Got it? In their argument they show a painfully careful reading of the Second Amendment that, they insist, allows not only the “keeping” but the “bearing” of arms. Thus, they say, the latter permits taking weapons anywhere and apparently at any age — though I honestly don’t see where the lack of age restriction comes in. Perhaps it’s somewhere in the small print.
However, in their close reading of that Amendment the NRA lawyers seem to have ignored altogether the antecedent of the hypothetical sentence. It says that “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.” I have blogged about this before, but apparently the NRA lawyers don’t read my blogs. And that’s a pity, because the entire case for the so-called “right to bear arms” rests on the supposition that there will be no standing army and because of that we require a militia. But we do have a standing army (and then some). It follows that the right to bear arms is not protected by this Amendment, since there is no need for a militia. The two are conjoined in the Amendment which the NRA lawyers claim to have read so carefully.
Of course this is the group that stood by silently when the Congress was debating the possibility of outlawing certain types of weapons to keep them out of the hands of the militant blacks during the turbulent 1960s, and said nothing when Congress actually passed The National Firearms Act in 1934 prohibiting such things as sawed-off shotguns during the days of Al Capone, a law that was later upheld by the Supreme Court as Constitutional. If you read the decision of the Court in 1939 regarding the National Firearms Act, titled United States vs. Miller, it is clear that the Court regarded the necessity for a militia as the key ingredient in the Second Amendment. Their reasoning was as follows: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Not only can the NRA apparently engage in selective protest, but also selective reading. So much for matters of principle and a genuine concern for what the Founders actually said. And, seriously? Kids carrying guns?