Law Professor Claims Second Amendment Irrelevant to Gun Debate

By David Codrea

USA – -(Ammoland.com)- “[O]ne of the persistent and puzzling aspects of the politics of guns in this country is the insistence by ‘gun rights’ advocates on invoking the Second Amendment as a magical talisman, seeking to shut down all talk of gun control by asserting that such laws would violate the Constitution,” Neil H. Buchanan writes on Justia. The guy’s a Professor of Law at a university servicing establishment elites, so it’s probably safe to assume his “magical” misdirection and definition of “shall not be infringed” will accommodate all kinds of nuances, deviations and contortions that mere readers of plain English will miss.

“Substantial numbers of constitutional scholars … believe that the Supreme Court’s 5-4 decision was wrong … and I am among the dissenters as well,” he discloses to no one’s surprise. “Even so, the Constitution has never been interpreted in a way that would give people the right to have firearms in their possession anywhere they want and for whatever reason they want.”

First of all, the Bill of Rights “gives” nothing. You’d think a self-styled leading legal luminary would grok what the Supreme Court has articulated—and repeated—on that matter, especially since he’s the one who brought up Heller:

“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence…”

“[T]he Second Amendment is simply not relevant to the US gun debate,” Buchanan assures us. “None of the proposals to limit gun purchases, to limit (or even ban) carrying weapons in public, to require background checks, to forbid gun ownership by domestic abusers, to limit magazine capacities, or any other proposal on the horizon even comes close to bumping up against the Second Amendment.”

You’d think he’d have a better argument than Julianne Moore. Still, I’m reminded of the “God said it, I believe it, that settles it” bumper sticker. Substitute “Neil Buchanan” and we can put all this stiff-necked unpleasantness behind us.

Except we can’t, because insisting that bans have no bearing on the Second Amendment is just not true, and again, a “Professor of Law” would know that. He’d know about the Miller opinion (right there on Justia!), when the court had no evidence possession of a short-barrel shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

That’s a key point he’s ignoring. The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was—and is—to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. The militia assembled with the intent to match and best a professional military threat.

Such citizens have never been a majority, which is what seems to have set Buchanan off (this time), with his epiphany that gun owners are a minority (and it’s ironic that he seems to be fixated on “Three Percent”). Good thing for us we have a “Professor of Law” instructing us how such minorities evidently don’t count against majority rule.

Besides, there’s no precedent, he maintains. And what did the Borg say? Resistance is futile!

“Although the Supreme Court has never credited the ‘citizen uprising; theory of the Second Amendment, there are plenty of people who think that their arsenals are a bulwark against a tyrannical government,” Buchanan continues. “How they think they would win against the weaponry of the modern military is anyone’s guess, of course, but that is beside the point here.”

No, that kind of is the point, especially for a nation forged from armed rebellion that acknowledges there exist “enemies, foreign and domestic.” At least it was for Former Associate Justice of the Supreme Court Joseph Story, who noted in his Commentaries on the Constitution:

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

As for not having a prayer against “weaponry of a modern military,” the type of situation Buchanan’s ultimately implying means people are going to take sides, and it’s not like the ranks are heavy on sons and daughters of “progressive” academics. It’s also not like there aren’t plenty of other factors he has offhandedly dismissed. Without getting into all that here (although it is a subject worthy of much further discussion), suffice it to say that just as arms in private hands can deter individual aggression, so too does that work on a societal level.

There yet remain undelegated powers those who covet them dare not attempt to claim. And that means the Second Amendment is doing its job. And that is what those who would eviscerate it keep bumping up against.

We will not disarm.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.