"On one hand, some gun control advocates argue that the 2nd is only referring to milita and since there's no militia there's no right," said Bruce Carlson, host of the program. "On the other, some gun rights advocates say that the 2nd gives them a right with no limits whatsoever. Both are wrong."
My History Can Beat Up Your Politics goes into the state ratification conventions for the U.S. Constitution, where North Carolinians, New Yorkers and New Hampshireians had inadequate votes to ratify without the inclusion of rights protections, including gun rights protections. New York, Virginia and North Carolina included the 'keep' and 'bear' language that is reflected in the 2nd. Carlson says that examining the discussion of the Conventions can provide insight into the right.
"These conventions are where the right was born," Carlson said. "So if you go to the statements of conventioneers, the great fear was that a dictator would take over the U.S. government, and absent an armed populace, there was no way to keep the state free."
Thus the prefatory statement 'A well-regulated militia being necessary for the security of a free state," was added to the 2nd. It is often used by gun control advocates to suggest that the right is limited to those who are members of militia units. But the militia "was not today's National Guard. It maintained a civilian/military separation until mustered," according to Carlson. He notes that embers kept weapons at home, brought them to the muster, elected officers and often refused orders from the official military, as in 1812 when NY militia refused to invade Canada despite orders. Invoking militia at the understanding of the time, according to Carlson, was referring to individual ownership.
According to the podcast, The 2nd preserves a right to individual ownership of common weaponry, and it's clearly individual but then confusingly for a collective good to the nation. The second part, a collective militia of the entire male population, does not exist in a visible form, but the Supreme Court of the United States in Heller v. D.C. explained that the absence of militia doesn't change the right.
Yet, Carlson notes that despite the 2nd preserving an individual rights, there are also many things it does not do. It is limited to common weapons, It does not produce a right to any weapon for anyone at anytime. It does not regulate the sale of guns between constitutionally protected owners. It may not limit the regulation of the amount of weapons one person can own. And critical to the recent tragedy in Newton, it does not interrupt laws requiring fitness or lack of criminality for gun ownership.
"History can teach us much here," said Carlson. "The question we should ask is, who would be eligible to muster for a Scots Irish militia at the time the 2nd was written. Fit, deserving people utilized the right. We can't get back to trifold hats, but how do we get the law back to that understanding?"
The My History Can Beat Up Your Politics Podcast examines today's political events in the context of history. It has thousands of listeners and earns positive reviews on iTunes. It can be listened to on iTunes, on Stitcher, or at http://www.myhistorycanbeatupyourpolitics.com