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U.S. News Gets the Second Amendment Wrong

The media isn’t known for covering legal technicalities well, but this U.S. News & World Report story about the Supreme Court gun-ban case is particularly bad. For starters: 

For most of American history, courts have interpreted the Second Amendment to apply to the collective right of states to assemble groups of armed citizens, such as the National Guard. Nine federal circuit courts have upheld that position, and the Supreme Court favored it when it last considered the issue in the 1939 case. (While that decision upheld the federal regulation of an individual’s use of sawed-off shotguns, it didn’t directly address the scope of the Second Amendment.)

While many federal courts have taken to this idea, there are two important falsehoods here: The interpretation has not held sway for “most of American history,” and the Supreme Court has never accepted it (or “favored” it, whatever that means). The collective-right view stems not from the 1939 Supreme Court case U.S. v. Miller–which itself wouldn’t even constitute a majority of American history–but from a subsequent misreading of it by circuit courts.  In the case, two bootleggers challenged a sawed-off shotgun ban on Second Amendment grounds. The court upheld the ban, but not because the men were bootleggers rather than militia members. Rather, the logic was that the Second Amendment protects ownership of guns of the type a militia could use, and the men had not proved such was the case for a sawed-off shotgun. U.S. News continues

But in the past few decades, more and more legal experts have supported the position that the Second Amendment protects an individual’s right to have guns. Although they remain in the minority, proponents include some noted liberal scholars . . . At the core, their reasoning is simple: Most other freedoms granted by the Bill of Rights, such as free speech, have been widely interpreted as protecting an individual right; therefore, the Second Amendment should be treated no differently.

One, I’m aware of no evidence that individual-rights folks are still “in the minority.” In fact, for some time, that view outnumbered the collective-right view significantly in law reviews (admittedly a rough proxy for professional opinion overall, for several reasons). Two, the logic the article summarizes is weak at best, and not actually what proponents argue. Rather, they consult the historical record and Supreme Court precedent, finding that the amendment was intended by the Framers, and long assumed by the courts, to protect an individual right. Its being surrounding by other individual rights merely buttresses the case. Constitutional law is a difficult subject, especially on deadline, so I’m willing to give the publication the benefit of the doubt – these are probably mistakes, not deliberate bias, even though a companion story from the same author laments “the uphill battle for gun control.” But nonetheless, the writer really dropped the ball.

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