Waiter, one dead horse smoothie please

OK, I know I'm going beyond beating a dead horse, I'm putting it in a blender, but i want to close this out.

This whole guns thing started with a very innocuous comment to a post by my pal Jill. I wrote " I hope you recognize that the 2nd Amendment does not guarantee private gun ownership." That is---a fact.

I usually tend to avoid this argument because it boils down to would Batman beat Superman. I can also get conflicted because I wear two hats, lawyer and historian, and the legal scholars and the historians tend to take very different approaches to this issue.

What is comforting, though, is that the issue as to what it IS has been largely resolved by the courts. Admittedly, the Supreme Court has been less than helpful. In 1939, they give us the quite less than clear U.S. v. Miller. Old Justice Mcreynolds wrote that

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

But since, the federal circuit courts--which define binding federal law for their circuits in the absence of controlling Supreme Court precedent, have, with one caveat, unanimously found that the 2nd Amendment conveys no private right of gun ownership. Now of course the caveat is the 5th Circuit case of U.S. v. Emerson, but its statements concerning the 2nd Amendment are generally seen as dicta (statements by judges concerning matters not germane to the decision). In other words, these statements are not binding precedential law, merely expressions of judicial opinion. Note that in the subsequent case of Gillespie v. Indianapolis, the 7th Circuit didn't even bother citing Emerson. Naturally, the Supreme Court denied cert (I can explain that if needed) because it doesn't want to touch these cases.

Those were federal--the courts also have routinely held that the 14th amendment does not incorporate the 2nd against the states (again, legalese, let me know if you need an explanation.)

OK, let's take off the lawyer hat but keep it close by in terms of, you know..evidence, but replace it for now with the geekier historian's cap.

First of all, by way of background--I must acquaint you with the theory of "republicanism." No, it has nothing to do with the grotesquely corrupt American party sharing that name. Rather, it refers to a late 17th and 18th century dualistic political philosophy. Republicanism saw a historical evolution from virtue to corruption, and to many American revolutionaries, at least in a purely ideological sense, their revolution was the overthrow of the old (corruption) by the new (virtue).

One of the hallmarks of republican ideology, and expressed throughout American history, was the distaste for the standing army. A key component of republican igy was that standing armies lead to corruption. If the "prince" had access to a peacetime military, he would be tempted to use it for mischief. THAT is why the militia is mentioned, the citizen force would be virtuous as compared to the standing army. You see that notion throughout American history, as a standing peacetime army is a post-WWII phenomena, and of course, a generation later, we had to resort to the draft.

You can look at the writings of George Mason. one of Virginia's leading Anti-Federalists, and he rails upon the constitution's failures to protect the STATE MILITIAS. That leads me into my major complaints against the gun right crowd--the "quotes."

We showed below how one of the "quotes" was faked up. You will also note that none of the quotes are dated or provided with context, and of course, NONE of the quotes address the 2nd Amendment, In fact, Jefferson's quote, which comes the closest--was made in 1776.

Shall we also provide some historical context? I cited below Patrick Henry complaining about equipping the militia, and how it hadn't been done? Of course there was bureaucracy and incompetence, but also--guns were scarce and expensive. They either had to be hand-made here or imported. Most Americans didn't have guns--they were too damned expensive.

Let us return also to April 1775, lexington and Concord. Why did the british move? To attack the MILITIA STORES, the COMMONLY-HELD arms.

We can go back to Shakespeare referring to "well-bourne arms" to describe war to Garry Wills saying that you don't "bear arms" against a rabbit. But despite that, even factoring in the "standard model" approach from Robert Shalhope, Joyce Malcom and Stephen Halbrook, I see them as wishful thinkers because (damn that lawyer in me) the courts have spoken.