Yesterday, Mark V. Tushnet author of Out Of Range: Why the Constitution Can’t End the Battle Over Guns, introduced us to the gun-rights argument. Today Tushnet takes a closer look at the gun-control position. Be sure to check back tomorrow for part three in this series.
Gun-control proponents support their position with several arguments. First, the text: The Second Amendment does refer to the militia, and the gun-rights position deprives the Amendment’s preamble of any operative significance, which is unusual in constitutional interpretation. But there’s more to the textual argument. The Constitution refers to the Militia in two additional places. It gives Congress the right to laws providing for the calling forth of the Militia, and it reserves to states the right to appoint the officers of the Militia. These references clearly deal with the state-organized Militia, and we ought to interpret the Second Amendment to use the term in the same way. The Second Amendment would then prohibit Congress from disarming the state-organized militia – and would thereby preserve the ability of those militias to resist an oppressive national government. (more…)