Law Professor Claims Second Amendment Irrelevant to Gun Debate

By David Codrea

Americans with “in common use at the time” infantry weapons resisting government tyranny? What does that have to do with the Second Amendment? (Don Troiani – National Park Service)
David Codrea in his natural habitat.

USA – -( “[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.

A not insignificant minority…

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.”

Story considered armed citizens a check against tyranny.

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.

  • 53 thoughts on “Law Professor Claims Second Amendment Irrelevant to Gun Debate

    1. Klamath Falls Herald and News: Sunday, October 22, 2017
      Letters To The Editor

      ‘Gun violence’ a term that means nothing

      With total contempt I read Daniel Hernandez’s Oct. 8 elitist anti-gun “LBJ/KGB” style commentary: “For gun reform, thoughts and prayers don’t work-laws do.” The distorted term “gun violence” was pontificated six times! Comrade V.I. Lenin and Leon Trotsky would have called this writer a “useful idiot.” With the recent horrific Oct. 1 massacre of 59 innocent bystanders in Las Vegas, by a deranged and depraved sociopath, the anti-gun elite in both house of Congress in Washington, D.C. (mostly deluded Democrats, but including too a remnant of RINOs (Republican In Name Only) have already predictably pontificated the parroted term “gun violence.” They love dancing in the blood of the dead murder victims, and thus are exploiting this horror to advance their “class warfare” political agenda.

      There is no such thing as “gun violence.” This is a focus-group-driven buzzword and socialist anti-gun cliche talking point to create an imaginary demonic villain as the main anti-Second Amendment propaganda tool. While there exist evil, godless, depraved individuals who perpetrate lawless criminal violence with guns, there are numerous others who perpetrate the same without them. And, since the morally and intellectually dishonest parroted term “gun violence” is a catchword/cliche, the title suggests an unattainable goal.

      People have been robbing and killing other people, using the weapons of the day, since the dawn of history, which identifies the real issue: controlling criminal impulses in humans, not the otherwise legal instruments they use to commit crimes. Anyone who doesn’t realize and/or acknowledge this isn’t thinking, and are into a denial syndrome. Our liberty cannot depend upon what anybody “feels.”

      Without going on further I endorse reading the online commentary: “The Last Civil Rights Struggle? Discrimination and prejudice are still encouraged, gun owners have taken it long enough,” by Alan Korwin.

      James A. Farmer, Merrill

      My above letter call out this anti-gun elitist “class warfare!”

    2. The Founders took their ideals on what the purpose of government is from this treatise –
      “The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence.” — John Locke, Second Treatise on Government, Chapter XIX, Of the Dissolution of Government, Sec. 222, 1690.
      And this clown professor should pay attention to this from Marcus Tullius Cicero –
      “There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome and another at Athens; one thing to–day and another to–morrow; but in all times and nations this universal law must for ever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author,—its promulgator,—its enforcer. He who obeys it not, flies from himself, and does violence to the very nature of man. For his crime he must endure the severest penalties hereafter, even if he avoid the usual misfortunes of the present life.” De Re Publica [Of The Republic], Book III Section 22

      The ancients understood about Natural Law, the Progressives are just stupid secular infidels.

    3. All those people that don’t want to disarm the citizen’s sure do spend a lot of time and wind trying to convince everyone they’d be better off disarmed. Hmmm. Are they planning something if they succeed?

    4. Re: “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”

      The purpose of the Second Amendment is clearly stated in the preamble to the Bill of Rights – specifically “The convention of a number of states having at the time of their adopting of the Constitution, expressed a desire, in order to prevent misconstruction or abuse, of its powers that further declaratory and restrictive clauses should be added”. Note that when the Second Amendment was written, every weapon was a weapon of war, there were no restrictions on the private ownership of weapons and the militia was equally matched with the Continental Army. After all, if they weren’t equally matched and able to have the “right to have firearms in their possession anywhere they want and for whatever reason they want”, it would be pretty hard to deter or prevent a “misconstruction or abuse, of the government’s powers” – so in reality, the citizen militia of today should have the same firearms as the current US military. Unfortunately we are no longer equally matched because we have let our gun rights be eroded by buying into this notion if we just compromise to accommodate the people who – for whatever reason – don’t like guns they will quit trying to take away our gun rights. History has shown that no matter how much we compromise, it’s never enough so we need to stop compromising.

    5. Why is it that when these educated elitists and their party representatives “win” a SCOTUS case they immediately proclaim “we are a people of law, and the court has spoken”, but when they lose they chastise the court and Justices as being wrong and how WE must change this ruling? Despite what happened last November (THANK GOD) they just don’t get/understand/comprehend that the country does not revolve around the left coast or northeast.

    6. @Tim – I think the entire saying is:
      Those who can Do,
      Those that can’t do…Teach!

      Good to a point, but someone has to teach. The trick is to not let personal opinions get into your teaching!

      1. “Those who can, Do
        Those that can’t…Teach!”

        Those who say this can’t teach. You can’t know how hard it is to do it until you have done it a hundred times; you can’t know how hard it is to do it well until you have done it well a hundred times. If someone you know makes it look easy, he has done it well for a very long time.

    7. There is an old saying…
      Those that can’t do…Teach
      I think if a lawyer or a professor has an anti or pro stance, he should recuse himself which makes him irrelevant

    8. The Second Amendment has been a thorn in the side of the liberal intelligentsia for a long time now. Frustrated and running out of arguments, they jump the shark and claim the Second Amendment has nothing to do with their gun control positions. How convenient to just pretend that this bulwark of freedom from tyranny is irrelevant to the discussion. Their arguments were never based on logical fact anyway.

      1. Old Vet, That’s to make sure you get the message 🙂

        Moderators might be approving comments before they post causing a delay.

    9. I think lawyers should be made irrelevant to the gun debate, and for that matter to anything having do do with constitutional law!

      1. As much as I dislike lawyers myself, I must caution you. Be very careful here…

        Long ago, Sir Thomas More warned that laws and lawyers actually are necessary.

        If you chase the devil [or your personal hated demon] through the forest, and you are willing to cut down all the trees in the process… when all the trees are gone – and when the demon turns on you and charges – where will you hide?

    10. Not quite sure what’s going on with the Ammoland software but this will be the THIRD comment I’ve made on topics today. If it makes it, it’ll be the very first one published.

    11. Why is it that at least one part of Hollywood is ignored ? ie. the westerns say the magnificent 7, fist full of dollars, etc. John Wayne, Clint Eastwood, Chuck Norris , etc. Where the common theme is the poor unarmed populous at mercy of the bad guys with guns. Then along come the good guys with guns and all ends happily ever after . Or were they all made in Italy?

    12. A couple of things :
      Militia is defined as “all able bodied persons ..” that is from the Illinois Constitution and similar in most other States)
      The “militia ” is the “People ” .
      “Well regulated ” at the time of the Constitution and the Bill of Rights ” meant ” supplied ” regulation having a somewhat different definition at that time .
      Also …the Constitution itself defines “Rights” as inherent in the People and not being granted to the People by the government as per the 9th Amendment which states “The enumeration on the Constitution of certain Rights shall not be construed to deny or disparage others retained by the People ” .

    13. Neil Buchanan, law professor,has been and will continue to churn out hordes of fresh faced, briefcase toting, lawyers who know nothing about OUR Constitution other than what he force feeds them in his lectures. That is to say, they enter his classroom knowing nothing and exit still knowing nothing. These students will, for the most part, never again have occasion to consider OUR Constitution except to cherry pick favourite passages – – in the mode of an old hell fire and brimstone preacher – – that they will use to shout down opposition. Many of the young lawyers will find out that lawyering is a highly competitive occupation that doesn’t pay as well as they had hoped and will gravitate into politics with the hope of retiring as millionaires – – as so many have. I’ve said all that to ask a simple question; Is there any doubt as to why elected “representatives” of We The People know nothing about OUR Constitution and exhibit damn little, if any, consideration to it when cranking out onerous statutes that fly in the face of the intent of that precious document?

    14. Just because he has some LETTERS after his name means nothing. The second amendment was written so a 5th grader could understand it. We know what it means and we will continue to fight for that meaning, just as those before us did. Some of them died for it and some of us will too.

    15. Another educated IDIOT trying to say something but nothing comes out that shows intelligence, sounds like a DemocRATic politician, the lips are moving nothing is coming out except lies.

    16. Isn’t it enlightening to finally realize that college professors are not the best informed spokes people for the whole country to listen to and take their spouting as the gospel. They are no different than us but with a lot less life experience because they spend their time inside the hollowed halls of the college preaching their slanted views on a group of students who, many of them, swallow what the prof. says without questioning any of it. This is a very sad state of affairs and they turn out more libs every year. I don’t have an answer for how to control the beasts.

        1. @Tio N, Yep, even a obedience school flunk out has a fifty-fifty chance of being correct, as opposed to Kneel Pukein, professor of lies.

    17. In a way Buchanan is right. The constitution is irrelevant as one’s right to self defense need not be codified by The State to be law. The problem again with people like Codrea is that they are binary Statists: Democrat/Republican, Legislation/No Legislation. Although you may think that Codrea gets it, he doesn’t. He mistakes legislation for law and can’t see freedom existing without the central state…which BTW “The State” and “Freedom” are mutually exclusive entities.

      “We will not disarm.” is a strong statement from a fellow who sees the State as the final arbiter of whether you can make a gun quiet. My inkling is that Codrea would be the first turn turn in his arms if the State mandated it.

      1. And the main problem with your entire statement is that you “assume” you know how David feels and how he would react. You do not. I know David and he would not obey an unConstitutional, illegal law.

        “We will not disarm” is a perfectly logical statement and a perfectly logical stance for anyone who does not care to be further under the control of a liberal agenda. The only reason for disarming the law abiding is to further control them. It’s been shown, through the decades, that 1. A disarmed people are far more subservient to those who would be their masters and 2. Those who are disarmed more readily succumb to ever increasing loss of freedoms and suffer from criminal acts more then their armed counterparts.

      2. @Bob M, The Constitution’s Bill of Rights, generally, and the Second Amendment, specifically, provides enumerations and definition to our God given, natural rights that would otherwise be lacking. If our natural and God given right to self defense remained undefined, future generations might forget the broad mets and bounds of those rights or that those rights even existed. It was prescient that our Civil Rights were recorded, defined, and enumerated.

        1. BobM., The state exists to protect the citizen through its constitutionally enumerated powers and duties. The citizen is resposible for keeping the state bound to those powers and duties. Any deviation by the state towards tyranny must always be kept in check by an armed citizenry. Without laws, anarchy reigns. Without vigilence by the citizen the state reigns through tyranny. Its pretty simple in theory but only works if the citizen has power over the state. I doubt Mr Codrea would turn anything towards a tyrannical state except the business end of his weapon.

        2. @WB Amen brother. I don’t even claim to know near as much law as you guys nor do I claim to know what all Mr. Codrea is even saying. I respect him very highly. I just want to reiterate your statement about our God given rights. The government of the USA did not give us these rights. God gave us these rights. If the USA gave us these rights then they could be taken away. Our government has been set up on the facts of Gods rule of law. Yes, it is being challenged and we must make and sometimes take our stand on what and who we believe. If our government tries to take away our God given rights then there’s the rub. I am just writing to say I know you get it. WB your words are exactly right. Many people say we bible believers are ignorant and not to be heard anymore. I say we get it. I go as far to say the spirit behind anyone who tries to take away our God given rights is the spirit of anti-Christ. They are probably ignorant themselves of this truth of the spirit behind their actions. Anything that comes against the spirit of Christ is antichrist. Jesus said there is no middle ground. I am not saying they are the personal antichrist that is ludicrous but it’s really simple and I am not afraid to discern and say truth. God bless you brother and David Codrea and Ammoland and the USA. Help us all to stand in the right spirit.

        3. @WB Amen and Amen!!! The Lord Jehovah gave us these inalienable rights first and our constitution agreed with these rights. God gave not our government. Our government had the wisdom to build upon Gods rule of law. This is important because these rights cannot be revoked by any government unles we the people relent. Our country has a mandate by God to stand upon what is right. Thanks again WB for your stand and intelligence and vigilance. God bless.

    18. The challenge is their arguments are not logical (I know law isn’t logical. its law). By his reasoning you could discriminate against people of color or religion or restrict what people can say prohibiting any dissent of the government. Those very same restrictions are embodied in the very same Constitution and Bill of Rights. These people constantly take just the 2A and then ignore the other amendments and actually then use them against people who still support the 2A. Now there are bans on wearing firearms on shirts to schools, or other sensitive places, or talking about it openly. I seriously dont get why these people foam at the mouth over some people keeping firearms.
      Thankfully I talked my lefty daughter into getting her concealed carry permit last night. Of course it will probably be pink. One more for our side.

    19. These days a “Professor” is not something to automatically assume is an educated individual deserving attention or respect. A lawyer? Need I say more? Combine the two and you have something almost laughable that should be ignored any time it puts pen to paper or opens its mouth. Always consider the source of anything you hear or read and this “law professor’s” comments are about as important and relevant as the braying of any other jackass.

    20. I guess he is so busy teaching lawyering he hasn’t had time to read about the primitive militias and other groups around the world holding their own against modern armies. In most cases it is lack of numbers rather than superior firepower that determines the outcome.

      1. Exactly. Mr. Buchanan conveniently forgets how a few years ago one kook with a rifle had half of the Pennsylvania State police pinned down in the Pocono mountains for months.

    21. This Man doesn’t Understand that the Bill of Rights do not give us anything! GOD did that! The Bill of Rights tell the Government that they can’t touch it! The Second Amendment says that we will KILL anyone who tries to take them! Wake Up Fools!

    22. Oh, and one other thing, Mr. know-it-all “law” professor…did you ever hear of the .45 liberator? Heck all it takes is some gonads and one can obtain an F16 fighter jet if they know how to fly it. And I bet there a lots of us out here that are no longer in the Air Force that can.

      1. Or, like this cuckoo-clock’s diploma, printed in the back of a convenience store… cost him $0.25 for the copy paper.

    23. This clown reminds me of another Buchanan, James Buchanan the 15th president who gave us the Civil War. So he and other attorneys disagree with the Heller decision. Tough. The Court is the final word on the 2nd Amendment, which was a correct decision. The Court has had many bad decisions such as, Roe V. Wade, prayer in school, same sex marriage, Plessy V. Ferguson, and Dred Scot, to name a few. It took a civil war to overturn Dred Scot and the civil rights movement to overturn Plessy. Only a constitutional amendment can overturn the first three. Oh, but a constitutional amendment addresses the right to bear arms–the 2nd. Without the 2nd Amendment that right would have disappeared in the 1960’s when the three networks and the NY Times dominated public opinion before am radio and Fox News. Buchanan and his ilk can bitch and moan about it but they can’t change it. Thank God.

      1. Lincoln is the one who gave us the War of Yankee Aggression. There was no war until Lincoln invaded the sovereign nation of the Confederate States of America.

    24. Neil H. Buchanan… his name should be Kneel Buck-and-Wing. Tap dancing for his wealthy freedom thieving elites. There is no profit in letting us be a free people.

    25. In the Dred Scott decision Chief Justice Taney described the rights of citizenship and then denied that black people could be citizens. The right to keep and carry arms where ever they went was how Taney described teh right to keep and bear arms, including teh right to cross state lines bearing arms.
      If you look back to 1788 te new Constitution provided for the Militia in Article 1, Section 8. That was not seen as adequate protection for the rights of the individual. In the Lopez case teh Court said the the term “the People” was a term of art used in the Bill of Rights to describe individuals.
      To help this professor understand what the Second Amendment means I’ll paraphrase it just a bit.
      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.”
      Question asked and answered.

    26. The 2A protection of the individual’s RKBA serves a specific purpose, to have militias instead of standing forces. In this both the left & conservatives misinterpret the 2A. Yes, it protects the individual’s right to any & all kinds of weapons. Yes, it’s meant to protect the militia. The 2 go hand in hand. What’s not widely discussed is the fact that the Founders were leery of the govt having standing forces at its disposal. The militia exists to prevent, IE to make unnecessary, standing forces. Consider this from Elbridge Gerry discussing the 2A:

      “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”

      Unless you advocate disarming the govt you don’t support liberty, RKBA or the 2A.

    27. It’s truly amazing these days to watch the leftists go through all the gyrations to create an argument that gun ownership is NOT, and healthcare, birth control, and illegal residency ARE rights provided to us by the constitution. The right to bear arms, and strong reasons to do so, are enumerated right there in the second amendment, yet buffoons – even highly educated ones that are now teaching our children – will argue it’s not a right. Conversely, they will turn around and use vague language like the two words, “general welfare” as grounds for free healthcare, paying for birth control and abortions against your wishes, the right for illegal aliens to be here and be subject to constitutional protections, etc.
      A little education is a good thing, but in the hands of the wrong people, a lot of education is just downright dangerous.

    28. Another Brofessor, who is a liberal Brotatoe Chip acting like he’s the ultimate authority and arbiter of the 2nd Amendment’s meaning. I guess they can’t figure out that We the People will never cave in to their line of Bull Puckey no matter how many law degrees they have hanging on their wall. All those degrees mean is that they learned someone else’s opinions and adopted them, not studying the true intent of the Founders which is out there in their original writings.
      What this clown needs is an enema and then to be shipped off to live in some third world hell hole that has all kinds of gun control and a tyrant running the government. Then perhaps he’d learn the true meaning behind the 2nd Amendment.

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