U.S.A. – -(Ammoland.com)- “Matthew Schindler, the defense attorney for Kneko Tyray Moore, a convicted felon, states that the definition of ‘the people’ in the Second Amendment is not limited to law-abiding responsible citizens,” a Thursday letter to the editor in The Oregonian summarizes. “Schindler’s theory is that the government can’t demonstrate that the criminal charge is not consistent with the nation’s historical tradition of firearm regulations.”
Not so fast, say legal critics.
“The Supreme Court ‘characterized the holders of Second Amendment rights as “law-abiding” citizens no fewer than fourteen times,” Portland federal prosecutor Leah Bolstad argued back, claiming that “notably excludes convicted felons,” and citing Supreme Court Chief Justice John Roberts and Justice Brett Kavanaugh’s admissions in the Bruen decision that the ruling “doesn’t disturb ‘the longstanding prohibitions on the possession of firearms by felons.’”
What’s absent from that argument are Founding-era citations to back it up and connect “longstanding” to the founding era. That’s because they didn’t.
From Justice Breyer’s dissent (arguably the one thing he got right):
“‘[P]rohibitions on the possession of firearms by felons and the mentally ill [and] laws imposing conditions and qualifications on the commercial sale of arms’ have their origins in the 20th century… ‘Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.’”
It’s not a stretch to surmise they did not have a major recidivism problem with murderers because they were hanged, and lesser felons received long and hard punishments. That, and an armed populace raised in a militia culture that would not tolerate, let alone breed predators and dependents meant the social cancer of collectivist prosecutors turning known threats loose to continue victimizing the productive citizenry just wasn’t the issue modern-day collectivists have turned it into.
And like the maxim (OK, mine) says, anyone who can’t be trusted with a gun can’t be trusted without a custodian.
Oblivious to all this, the letter writer continues:
“Given this logic – that there is no limitation on the types of people that can possess guns – then why are there state and federal laws prohibiting various types of gun ownership for those people who are 21 years or younger?” he asks. “Are folks in this category not considered people? Why shouldn’t children have the right to possess guns and any type of gun they want? Did the nation’s historical tradition of gun regulation even consider the age of when people could legally possess guns?”
Some of us are old enough to remember having guns as minors and the grown-ups being OK with that. And there’s no shortage of stories about boys taking their guns to school with them so they could bag a rabbit on the way home. I even wrote about a friend who took his rifle on the Santa Monica bus when he was a boy. But we’re talking Founding era here, and for that, we can recall Continental Congress Delegate Tench Coxe’s February 20, 1788, Pennsylvania Gazette article where he advocated:
“The power of the sword, [opponents] say … is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY … Who are the militia? are they not ourselves[?].”
As encouraging as that is, it still doesn’t tell us what the law at the time was. For that, we can turn to what I would have previously considered an unlikely source, Fordham University Professor Saul Cornell. Due to his advocacy for taxing guns kept at home and arguing the best way to legally respect the memory of a black militia captain lynched by the Klan would be to keep Otis McDonald unarmed, I’ve taken to referring to him as the Slippin’ Jimmy of the revisionist history movement.
So what does Cornell tell us about “‘Infants’ and Arms Bearing in the Era of the Second Amendment”?
“Simply put, minors in the Founding Era had no legal standing to assert a claim in court to vindicate their rights, including Second Amendment-type claims,” Cornell writes.
Well, doesn’t that leave whatever I say next dead in the water? Not really, because, like Breyer in Bruen, Cornell manages to root out an acorn.
“Given the status of minors in American law at the time of the Second Amendment’s enactment, there is no credible legal argument that an infant might have made regarding a Second Amendment right to purchase or use a gun without the permission of a legal guardian.”
Ah! The understanding at the time was that parents would have a say in what their dependent children could or could not do! So, according to this, there were no Founding-era laws saying a boy or girl couldn’t have a gun if the adults raising them wanted them to.
“Progressives” may wish they hadn’t opened this door. If we’re going to go back to a historical understanding of parental rights, so much for bills aimed at giving the state the final word on puberty blockers, hormones, and surgery without parental consent. So much for school boards siccing the feds on parents protesting subversive agendas.
Here’s a historical understanding for them that addresses both points of the hyperbolic letter writer’s concerns: Remove violent criminals from society. And leave our guns and our children alone. Just like the Founders intended.
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. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.