A well regulated militia being necessary to the security of a free State,
the right of the People to keep and bear arms shall not be infringed.
This is the wording we argue about today.
What to Make of the Gun History Mess
Guns are a great equalizer. With relatively little training a person with
even a halfway decent gun is more powerful than any fighter alive—
even Bruce Lee or Muhammad Ali!
10 Make the gun a modern, easy-
to-use Glock 17, and Bruce doesn’t stand a chance.
Maybe this fact is the essence of the NRA argument that only
the gun rights of “law abiding” people should not “be infringed.”
Perhaps this approach conforms to the framers’ original intent. After
all, they never intended people without property to have much of a
say, and, as we have seen, in many states slaves and even free blacks
could not legally touch a gun.
But historical arguments, no matter how well founded or presented,
will convince no one in the gun debate. Indeed, given the state of
the scholarship, with point versus counterpoint, factoid versus factoid,
the debate is circular and never ending.
12 Remember, academic
careers are made on this subject!
55 MARCH 2015 ARIZONA ATTORNEY www.azbar.org/AZAttorney
Equalizing people in society is what
this poster is about.
14. Of course, as the above poster
shows, not all gun rights groups agree
with the NRA.
16. Justice Oliver Wendell Holmes’ classic
dictum that it is not protected free speech
to yell “fire!” in a crowded movie theater
(assuming, of course, there is no fire)
shows that even the right to free speech
is not absolute.
15. As Scalia wrote in Heller, the right of
self-defense is “not a right to keep and
carry any weapon whatsoever in any man-
ner whatsoever for whatever purpose.”
Moreover, government can prohibit weapons
in “sensitive places such as schools and
government buildings.” Heller at 2816–17.
What this really means is a lot of work
for lawyers for a long time. See, e.g.,
Cameron Desmond, Comment, From Cities
to Schoolyards: The Implications of an
Individual Right to Bear Arms on the
Constitutionality of Gun-Free Zones,
MCGEORGE L. REV. 1043 (2008); Glenn H.
Reynolds & Brannon P. Denning, Heller’s
Future In The Lower Courts, 102 NW. U. L.
REV. 2035 (2008).
13. As John Locke
explained, in “the state
of nature” a man is “con-
stantly exposed to the
invasions of others …
the greater part no strict
observers of equity and
justice.” This makes man
“willing to quit this condi-
tion … to join in society with others … for
the mutual preservation of their lives, liber-
ties, and estates.” John Locke, An Essay
Concerning the True Original, Extent and
End of Civil Government, in THE WORLD’S
GREAT THINKERS: MAN AND THE STATE: THE
POLI TICAL PHILOSOPHERS 129 (1947).
And who can forget the scene from RAIDERS OF THE LOST
ARK aka INDIANA JONES AND THE RAIDERS OF THE LOST ARK
(Paramount Pictures 1981) where
Harrison Ford levels the playing
field with one shot?
Muhammed Ali vs. Sonny Liston (1965)
Regardless of whether you believe the Second Amendment is
about an individual right or not, it remains a creature of civilization. If the right to bear arms is “inalienable,” meaning it is a
right in the “state of nature” or inherent in being a person, just
as with other rights, only law gives it effect.
13 The real issue is not
whether the Second Amendment guarantees an individual right,
but that guns have always been subject to regulation—i.e., gun
And in reality nearly everyone agrees with some form of gun control. Even the NRA states that only “law-abiding” people should
have the right to bear arms and does not advocate that a person
can buy his own battle-tank.
14 Laws that prohibit a felon from
possessing a firearm and that prevent us from owning a battle-tank are gun control.
And why not? Even First Amendment free speech is regulated.
If true for the First Amendment, so also for the Second. The only
question then is the extent of the regulation, not its existence.
All constitutional niceties aside, it again comes down to who gets
to play with the guns. In the end, law, and not guns, secures soci-
11. Glock 17.
12. See generally
10. Bruce Lee in WAY OF THE DRAGON (Golden Harvest 1972)