“The Second Amendment Does Not Transcend All Others”
During a House Natural Resources Committee Zoom meeting, Rep. Lauren Boebert’s bookcase firearms display (i.e., “two AR-15-style rifles arranged like an X,” a handgun and another large gun) appears to have been designed to intimidate.
This is what I would like to ask Boebert:
Why do you think your “right to bear arms” overrides the “right to freedom of expression” of other committee members who may feel your bringing a gun to a meeting intimidates them from speaking freely?
I don’t believe that the “right to bear arms” transcends all the other rights in the Constitution, and neither does Garrett Epps, a law professor at the University of Baltimore, who wrote a March 8, 2018 article in The Atlantic explaining why the Second Amendment doesn’t “transcend” the other rights.
Unfortunately, Boebert isn’t familiar with Epps’ interpretation of the Second Amendment.
This is the actual text of the Second Amendment that Boebert quotes:
“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. ” [emphasis added]
As can be seen in the above gifs, after quoting the Second Amendment, Boebert lectures the House committee:
“There’s no semicolon to follow that. That ends in a period. There are no examples of when government can restrict these rights, so any clever proposition that comes after that is an infringement on our Constitutional rights.” [emphasis added]
Yes, but what Boebert doesn’t acknowledge in her grammar lesson is there is A COMMA, NOT A PERIOD between the first clause about “a well regulated Militia” and the second clause about “the right of the people to keep and bear Arms.” That according to Epps, makes the first clause an “absolute phrase.”
According to Garrett Epps:
The “militia” clause is an “absolute phrase”; in grammatical germs, it modifies the entire sentence to which it is attached. I am not sure that I think “modification” can never contain “limitation.” It seems to me—as even Scalia wrote—that the words mean “Because a well-regulated militia is necessary etc., the right of the people etc. shall not be infringed”—and that the second part of the sentence doesn’t float very far away from the first. [emphasis added]
Epps reviews the historical context for the Second Amendment. Read the article for this fascinating history lesson. After reviewing the historical context, Epps concludes:
That’s the context. To me it suggests that, in adopting what became the Second Amendment, members of Congress were attempting to reassure the states that they could retain their militias and that Congress could not disarm them. Maybe there was a subsidiary right to bear arms; but the militia is the main thing the Constitution revamped, and the militia is what the Amendment talks about.
[...]
The text and context, however, don’t point us to an unlimited individual right to bear any kind and number of weapons by anyone, whether a minor or a felon or domestic abuser. That would be a right that, if recognized by the courts, has the potential to disrupt our society at a profound level; a right that, as Fallows’s correspondent blithely asserts, renders the damage of gun violence “utterly irrelevant.”
There’s no other such right anywhere in the Constitution. To prove that the Second Amendment transcends all others, the proof would have to be damned strong. I haven’t seen it yet.
[emphasis added]
Hopefully groups who are concerned about infringements on the “right to free speech” are filing lawsuits claiming that the broad interpretation of the Second Amendment by gun rights extremists and their representatives in state and federal governments is infringing on the free speech rights of many in this country.
[edited]
