The Corner

Law & the Courts

The Founders Wanted You to Own an AR-15

AR-15 rifles for sale at the Guntoberfest gun show in Oaks, Penn., October 6, 2017 (Joshua Roberts/Reuters)

In his questioning of Amy Coney Barrett regarding an Indiana case about a non-violent felon and his constitutional right to bear arms, Illinois senator Dick Durbin dropped numerous false claims about Chicago gun crimes. But he topped it all off with one of the most egregiously inane arguments used against the private ownership of guns:

When that Second Amendment was written . . . we were talking about the likelihood that a person could purchase a muzzle-loading musket.

Durbin went on to say that the logical conclusion of the “originalist” position on firearms should be that the Founders were referring to flintlock muskets rather than modern “military weapons.” (A purposefully misleading labelling of semi-automatic rifles that Democrats are trying to ban.)

Originalism, of course, isn’t the same as literalism. Even it were, Durbin would be wrong. Because the right to self-defense isn’t predicated on any one specific weapon but a principle. Which is why the Second Amendment doesn’t guarantee the right of individuals to “keep and bear Kentucky rifles” any more than the First Amendment guarantees the right of individuals to “write on parchment paper” or to worship “in Anglican and Presbyterian churches.”

Contemporary legislators have the hubris to believe that the Founders hadn’t envisioned any kind of technological advances in firearm technology. It’s an argument tantamount to claiming that free-speech protections are not operable because James Madison couldn’t foresee the incredible speed with which information can be disseminated on the Internet.

Not only did legislators in the late 18th-century witness the advent and adoption of long-range Pennsylvania rifles — ones that could fire at 300 yards with decent precision rather than 50 yards with none — but they were likely acquainted with the existence of weapons such as air-powered repeating rifles that could fire .46-caliber lead balls about 40 times before losing muzzle velocity. No Founder ever said, “hey maybe we made a mistake.” In fact, in the subsequent 150 years — through the rise of the revolver, the repeating rifle, and the gas-powered automatic weapons — no one ever challenged the idea that the Second Amendment protected anything but an individual right. Heller, the decision that so infuriated leftists, simply reaffirmed what had been obvious to everyone since 1789.

The Second Amendment is predicated on the principle that people have the right defend themselves and their liberties. The right to bear arms, in fact, is older than the right to free speech or freedom of religion. The English Bill of Rights, a document cataloging the crimes of James II and codifying the “ancient and indubitable” rights of English citizens in 1689, includes the right to “arms for their defence suitable to their conditions and as allowed by law.” Well, for Protestants. By 1765, William Blackstone, whose writings helped define the English common-law legal system, wrote that “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

Not one Founder mentioned anything about “hunting” or “skeet shooting” during the debates over the drafting of the Constitution.

The founding generation believed that firearms should be used to guarantee the universal and inalienable liberties of the people laid out in the Constitution — whether they were in the government or not. Thankfully, there is no need of insurrection now. But the presence of armed citizenry is always a good bulwark against tyranny. Just in case.

And a musket simply won’t do.

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