First of all, I should say that the reasoning that brought the court to this decision is weak.  It was indeed a grand game of Judicial Twister to be able to reference the historical rationale for the militia in the 2nd Amendment, the Supreme Court’s decision in Heller that supported an individual right to own firearms, and then seem to fail to understand that the militia’s purpose was a military one and that the people therefore should be able to arm themselves with such weapons.

Here in Missouri, the actual, what we call “unorganized”, militias I’m familiar with (no, I’m not a member) all specify that militiamen are to provide their own AR-15 platform rifles or FN/FAL’s or other substitutes.  Of course, the difference between Missouri and Maryland is that the role of the militia in the former is extremely well-described in its state constitution.

It’s because of my views on the the right of the people of the respective states to live under the laws that they want that I simply can’t say I’m looking forward to the inevitable Supreme Court case that will finish what was started with Heller and strike down these state bans on so-called assault weapons in a 5-4 decision once Gorsuch is confirmed.  For better or worse, I think that the state of Maryland has the right to define what its militia is and how the people ought to be able to arm themselves.  The legislature passed this law (in a reactionary panic to the Sandy Hook Massacre) and the governor signed it into law.  There hasn’t been any success in any effort to repeal the law as it was passed: through the democratic process.

What about the 2nd Amendment?  Well, what about it?  My view is unorthodox, I suppose, but I don’t believe that the 2nd Amendment was ever intended to apply to the states.  States and cities have always had the power to regulate the carry of classes of weapons and to determine what were the appropriate types of armaments for their citizens who would be expected to form the militia.

I’ll make clear that I’m pro-gun.  Very much so.  From a strict reading of the 2nd Amendment, I also believe that all federal firearms laws are unconstitutional.  What’s also true is that I’m always leery of the courts striking down the popular will of any state’s people when the issue is one that the states have historically had the authority to make those determinations for themselves.  The courts should have to meet an incredibly high standard before they can strike down any state law, in my perfect world.  I believe this on abortion, definition of marriage, and most any topic I can think of.

If the people of Maryland want to ban scary-looking guns for a false sense of safety, I wish them the best, though I wish those in the blue states could similarly allow people in red states to their own choices.

11 comments

  1. Strictly defined, it would seem that the purpose of the 2nd Amendment is “for the formation of a well-organized militia.” But since the early days of our Republic the states have made exceptions for hunting and self-defense. So the problem, of course, has never been the types of guns, but the fact that our people are for the most part armed that scares the government control types. Remember, the argument against black people owning guns was that they could use them to revolt and was supported by gun-grabbers.

    Congratulations on the site BTW!

  2. So true, on all points. Whenever I see the “Well, the 2nd Amendment just establishes a militia (civilan military force)” combined with “Well, we can’t have the 2nd Amendment allowing civilians to have military weapons”, I just shake my head.

    Many thanks!

  3. As a Maryland resident, I was very much disappointed in this decision, as I have been considering a firearm purchase in the near future that will no longer be allowed in my state. At least for now, because this will most certainly be overturned at some point. Reading some of the discussion and quotes from the decision, though an en banc ruling, it relies on legal technicality shenanigans that won’t stand in the end.

  4. Maryland consistently works against the constitution to establish laws that fit a narrative. Remember they also have “Megan’s Law” there which even by the mildest legal definition is a speech chilling constitutional overreach to stop “online bullying.”

  5. I’m not 100% convinced that it’ll get over-turned at SCOTUS, even with Gorsuch. I’m maybe 85% sure. I can easily see Roberts or Kennedy being reluctant to open up more weapon types under 2nd Amendment protection.

    Aside from that, I will have mixed emotions about a favorable SCOTUS ruling. Yes, I believe these weapons are perfectly fine for civilian use, but I am never comfortable with split decisions that over-turn state laws.

  6. the right to own a firearm or type of fire arms is not welded to participation in any Militia, while a state may legally define who the official militia is, they cannot define which arms they chose to carry in such service… the 2nd is pretty clear that the right to keep and bear ARMS, shall not be infringed. pistols to cannon were in such militias armory or in personal ownership at the time this was written…alas.

    This in time will be over turned, and then there will be another zany law. The Founders very initially wanted the population to have access to arms suitable for militia service, which is the say arms fully suitable in warfare. Current laws restrict me to a shadow of such, a semiautomatic file is a far cry from a sweet sweet belt feed .50cal Huge Giggle Manufacturer…..

    oh well i could not afford to feed the thing anyhow…

  7. The Constitution does not grant an individual right to keep and bear arms. What’s more important is that it doesn’t prohibit it either, meaning that every federal firearms law since 1934 is unconstitutional and ought be nullified.

    Remember: Any power specifically not enumerated to the federal government by COTUS is reserved for the states and the people.

    I do say that the states can define individual ownership as they see fit. Missouri’s constitution is probably the clearest on the topic you’ll find. It states unequivocally that there is an individual right to keep and bear firearms and it even guarantees a right to self-defense. It’s great and it works for us, but I’m okay with other states limiting the right if they find it serves the public interest.

    It really comes back to that “one size fits all” approach under discussion on the transgender bathroom thread. You can’t like it for certain issues and hate it for others.

  8. The Constitution does not grant an individual right to keep and bear arms.

    The Constitution does not grant anything to individuals. It places limits on the Government. But as far as what you’re saying in regards to the right to keep and bear arms, the SCOTUS disagrees with you in DC v Heller.

    Held:

    1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

    The types of those arms are still up for discussion. For those who claim “then you can have muskets!” I ask them to in turn explain how the first amendment extends to the Internet.

  9. You’re right. SCOTUS disagreed with me in Heller….and Miller too…and pretty much every case where they’ve ruled that the federal judiciary has any right to speak to the 2nd Amendment when it comes to upholding restrictive gun laws passed by Congress by striking down those passed by states.

    I freely admit that I’m on the fringe here, but I say that the 2nd Amendment literally prohibits the federal government from having any say at all what Americans can arm themselves with and that the states do have and always have had the authority to make those choices themselves.

    I live in one of the freest, most pro-gun states in the Union and I’m happy for that fact, but I’m not interested in forcing my way of life on the people of Baltimore or Chicago, even if I think they’re deluded.

  10. I can see the logic in your reasoning, and don’t completely disagree. So do you also think the states can pass laws establishing a state sponsored religion, or abridging the freedom of speech or the press?

  11. Well, pre-14th Amendment, yes, I do think they could. That’s sort of changed things. I personally would prefer that states have that authority, for better or worse, but it isn’t going to happen.

    The 2nd Amendment hasn’t been incorporated YET, but it will be sort of hilarious watching liberal people who otherwise applaud constitutional rights being applied to the states react with terror when they can’t ban AK-47’s.

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