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.
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.
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.