Commentary: Hamilton and Madison never imagined assault weapons

As a frequent lecturer for legal education courses, I found myself in New Orleans last week when the mass shooting in Parkland, Fla., occurred, breaking our collective hearts once again. As we grapple for lawful ways to restrict access to these devastating weapons of death, we are all beholden to the theories, myths and mysteries of what our framers intended as they crafted the Second Amendment. Curiously, Justice Antonin Scalia argued and championed “originalism” — the idea that we must put ourselves in the framer’s minds as we modernize their intent. We’ll discuss more on that in a minute. First, back to New Orleans.

One of the joys of New Orleans is browsing through the ornate antique stores along Royal Street. Fantastic stuff: armoires, dining room furniture, chandeliers from an age gone by, just incredible stuff in mint condition. But the star of my curiosity is the antique gun store — James Cohen and Sons — which features hundreds of antique guns, rifles and weapons which I admire with respect and wonder. They seem so primitive compared to my M-16 used during my service in the Army. The shop features muskets from the Revolutionary War, rifles from the French Revolution and our Civil War, as well as classic Remingtons and Winchester rifles. I never miss browsing just to look around these weapons covering the walls with written explanations.

OPINION: A case for small steps to fix a big gun problem.

It suddenly hit me like a ton of bricks. I’m looking at this wall of muskets, and, using the “originalist” theory, those muskets were what Madison, Hamilton and the others were considering as “arms.”

Clearly, the framers of the constitution allowed citizens to keep their muskets for good reasons: They were used not only for battle, but also for self-defense and hunting. A good musketeer could fire, reload and fire a second shot in just over a minute. That’s what the “originalist” view should be today.

The framers also expressly coupled the notion of bearing arms — because they wrote it this way — with the practical need to mobilize a “well-regulated militia.” Because of the need for a well-regulated militia — because we had no army under the Articles of Confederation — citizens had the right to keep those muskets and sabers handy, just in case Paul Revere calls on you again.

Now, we fatally twist the Second Amendment in a way never intended by the framers. First, we never mention its predicate connection to the need for a volunteer militia. Clearly, we all acknowledge there are limitations to weaponry on some level: We don’t allow people to own bazookas or ground-to-air missiles. Why? Because they are clearly weapons of war consigned to the military. We can’t risk having a citizen shooting down Southwest Airlines flights coming into Orange County in a fit of depression.

JUAN CASTILLO: Prayers won’t stop this cycle of madness.

So, let’s look at assault rifles. They are not “general purpose” firearms intended for self-defense. It’s unlikely you need 600 rounds per minute to stop an intruder. You’re not going to hunt Bambi with an AR-15. Thirty rounds of NATO 5.56 ammo won’t leave you a nice venison rib roast. These are assault weapons, for trained soldiers to use to offensively assault the enemy, not defend from a burglar.

And I would venture to say that less than 1 percent of anyone buying them is part of a “well-regulated militia.” So, the logic of allowing nonsoldiers to keep and bear offensive weapons of war simply doesn’t work. If that latest mentally ill attacker-murderer had a musket, at maximum only one person would have been wounded or killed.

So, you fans of “originalism,” tell me I’m wrong. You can’t do it. We don’t have militias, we have a regular Army; and the framers could not possibly imagine the ferocity of today’s assault weapons. Restricting their sale and use is indeed a prudent and urgent matter of public safety. Undoubtedly, our beloved forefathers would be shocked that we have strayed so far from their idea.

Ducloux is an Austin attorney and former president of the Austin Bar Association.

Reader Comments ...

Next Up in Opinion

Letters to the editor: June 25, 2018
Letters to the editor: June 25, 2018

The Austin City Council voting on CodeNext dishonors the act of voting, the 2012 council vote for Imagine Austin and the individuals who sacrificed for voting rights and our form of government — veterans, first responders and citizens. It’s time to stop the process, otherwise the city’s goals set forth in Imagine Austin will go unfulfilled...
Opinion: Return of the blood libel

The speed of America’s moral descent under Donald Trump is breathtaking. In a matter of months we’ve gone from a nation that stood for life, liberty and the pursuit of happiness to a nation that tears children from their parents and puts them in cages. What’s almost equally remarkable about this plunge into barbarism is that it&rsquo...
Opinion: On being decent

Not too long ago, I returned to my parked car and found a sheet of paper on the windshield bearing an expletive-laden message. The anonymous poster had obviously gone to some effort to make these flyers on his home computer — complete with color cartoon figures and such. It let me know what an (obscenity) I was. My sin was having parked my car...
Herman: Beto O’Rourke flashes star power at Texas Democratic Convention
Herman: Beto O’Rourke flashes star power at Texas Democratic Convention

Some takeaways taken away from three days with 7,500 or so delegates at the Texas Democratic Convention: In general, the Dems didn’t approve a platform with nearly the volume of nutty stuff the Repubs did at their convention. Oh, there’s plenty in the Dem platform that some folks won’t like, but there’s nothing approaching the...
Facebook comments: June 24, 2018
Facebook comments: June 24, 2018

As reported by the American-Statesman’s Johnathan Silver, Austin-based nonprofit Southwest Key Programs spoke out against family separations at the border after President Donald Trump signed an executive order ending the practice. The organization posted a statement on Facebook that said, “Southwest Key Programs does not support separating...
More Stories