Comments on the legal history of the 2nd
by
Matt Giwer

      No, I am not going to discuss it, I am going to comment upon it. Specifically, I am comment upon the lack of it. For a century an a half its case history was second only to that of the 3rd in dirth. The meaning of the 3rd was clear and cases of its violation were apparently negligable.
      Similarly the meaning of the 2nd was clear and cases of the violation of its presumed meaning were negligable. In fact until Miller, in response to the first federal weapons ban, the only references are in passing in cases not related to 2nd amendment issues. Even the 1st amendment can not make a claim of lasting so long without challenge even for today's "clearest" clauses.
      In the case of what are given as axiomatic rights upon which a government is based it is prudential, when there is ambiguity, to err on the side of those rights. That direction of "error" is the clear history of the 1st amendment. It is clearly the opposite approach that applies to the 4th amendment (search and siezure) so there is no guidance as to an accepted direction of error.
      For example in the 1st we err in the direction of benefit to society and most solidly reject the idea that speech or religion or the press control can be of benefit to society. In the 4th we are asked to make fine distinctions between the benefits to the individual and those of the state rather than rejecting the idea that any benefit to the state is illusory as we do in the suppression of speech.
      But in the 2nd we are facing a different issue. A criteria has been introduced that exists in no other form for not other right. That criteria is that crime can be reduced by the restriction of a right. This is unparalleled in any other amendment.
      At one extreme we have a finding that even the explicit, verbal advocacy of the overthrow of the government by force is protected speech. On the other hand we have amazingly fine quibblings over search and seizure such as what constitutes plain sight and what constitutes consent. In the former case it is held that advocacy of violence is protected but in the latter we hold that there are cases where the guilty should go free.
      In regard to the 2nd we have the presumption that fewer crimes will occur if certain types of weapons are banned and certain controls are imposed and therefore a right may be infringed for the good of everyone.
      Depending upon which political extreme a person belongs to either violent movies or violent speech, do or do not incite violence. (It is noted there is no solid evidence for any of the four possibilities in this example.) However, it is held, again without solid evidence, that the prior suppression of certain types of arms, unlike prior suppression of speech, will prevent future crimes or violent behavior.
      The very lack of such a connection for over a century certainly speaks volumes for people in times when had much more direct knowledge of their neighbors and their habits than we do today. Rather the connection between gun prohibitions and crime in socially neutral environment (ignoring the first gun laws were to prevent ownership by freed slaves and later applied against union members) was as a result of the consequences of Prohibition.
      Machineguns and automatic weapons were outlawed because they were weapons of choice by organized crime. Consider that machineguns were used in the St. Valentine's Day massacre and fewer died that on a good weekend execution slaying in Washington DC. Consider that the .22 handgun has replaced the short barrelled shotgun as the close assassination weapon of choice because it is better. And then consider the clear evidence that banning those two weapons had no justification even in the purported connection with crime.
      Despite the dirth of 2nd amendment cases, this law caused the first one related to today's issues in which the defense was not represented. It involved a ban on certain weapons that were popular with organized crime but in fact had no relation to crime unless one holds both that they obeyed the law and found no substitutes, both of which are not supported by any solid evidence.
      The next federal law was in 1968 in response to two assassinations and it was freely admitted, as have all such instances since including in 1994, that the law have done nothing to have prevented them.
      Thus we have a criteria for the 2nd that religious zealots would like to apply to the 1st, that the unproven presumption of harm to society outweighs the individual right. It is not as though millions of non-criminals had become criminals for the sole cause of gun ownership. Nor is it evidenciary that criminals are criminals solely because of their access to guns. And there is certainly no evidence that criminals obey gun laws only.
      So here we have the 2nd attacked upon grounds that would be laughed out of court if applied to the 1st. R rated movies cause crime therefore they must be controlled if not banned. Graphic violence causes real violence therefore it can not be permitted in interstate commerce. Assualt weapons cause crime and therefore must be banned from interstate commerce.
      There is also the implication that guns make crime possible even though the per capita rate of violent crime and been decreasing for nearly a century and only the preference for guns over other weaopns has increased. The argument for banning guns today is no better than an argument for banning knives a century ago based upon crime prevention.
      It was not until the equivalent of prior censorship was introduced into the 2nd amendment. Before then gun owners did not have to question their right to own guns. Before then there was no one questioning their rights. The lack of challenges attests to it.
      The 2nd differs from the 1st in that prior restraint was considered reasonable for the 1st. The 2nd brought the same response ab initio to prior censorship being applied whereas the 1st had to discover new variations of what was protected before it developed a legal history.
      As in the history of the ACLU it made little progress for decades in discovery these new variations. It started with the Supreme Court refusing to hear such cases and when it did, deciding upon the narrowest of grounds, as in 2nd cases, against the 1st.
      And this leaves us where we are today with the 2nd. There exists no unambiguous decision regarding the 2nd amendment. Miller did not state "if there were military utility then it would be protected" rather it was written inverse to that, "in the absence of." The desire here is to obtain a clear case to be heard by the Supreme Court in which only an unambiguous decision can be made, such as "separate is not equal."
      Those against gun ownership on personal grounds such as Handgun Control Incorporated file briefs urging the Supreme Court not to hear such cases. The NRA encourages the court to hear such cases and requests a decision based upon 2nd amendment grounds.
      The ideological lines are drawn and it is certainly desired those wishing the matter to be decided on the merits of the case and the constitution to have such a case heard and the ambiguities resolved.
      The current court is encouraging in that it issued the first limitation upon the interstate commerce clause in decades. Given the last case the "diner in the middle of the state" case could be overturned. That it might be willing to take on such a minor case as a handful of useless but burdensome laws it to be expected.