This week, President Joe Biden received some criticism for his statements about the Second Amendment. Biden stated that the Second Amendment has limited who can own guns and what weapons you can own since its passage. The Washington Posts fact-checker Glenn Kessler gave Biden four Pinocchios Monday for his remark. Gun rights activists are laughing at this. Biden misstated the history. Cannons weren't explicitly banned in the Founding Era. Gun rights advocates Glenn Harlan Reynolds, David Kopelare guilty, among others, of similar distortions. They are also less reliable sources for the history of gun regulation and the Second Amendment. Biden's main point is not controversial. Guns have been regulated since the Founding generation. This ensured that gun rights were balanced with the need to protect the peace and safety of the public.AdvertisementAdvertisementAdvertisementAlthough Biden's claim was incorrect and poorly written, he could have made his point with something like this: The Second Amendment was not intended to stop the government from regulating weapons, even dangerous or common weapons. Sir William Blackstone was a leading legal commentator on English law. Justice Antonin Scalia cited this text in his Commentaries to support his opinion in District of Columbia, Heller, which recognized an individual's right to own a firearm. Scalia made this point in his opinion:The Second Amendment does not guarantee unlimited rights. Commentators and courts from Blackstone to the nineteenth-century cases repeatedly explained that the right did not include the right to carry and keep any weapon in any way or for any purpose.AdvertisementWhat about cannons, then? No matter what the law at the time was, there is no evidence that private citizens were carrying mortars, howitzers or cannons in the streets of Boston, New York or Philadelphia, while Congress was discussing the Second Amendment. These pieces of artillery were expensive and difficult to make. These items were owned by private militia units chartered by the state, like the Ancient and Honorable Artillery Company of Massachusetts. Merchant vessels would also have been equipped with cannon, due to the risk of piracy. These facts do not invalidate the main point Biden was trying make, even though he did so infelicitously.AdvertisementOne problem with these exercises in antiquarianism or originalist literalism, is that they fail to see the bigger point of trying to translate 18th-century legal principles and practices into modern terms. Modern gun rights activists who claim that there was no law against owning cannons in the Second Amendment era are either disingenuous or presentist. The fact that there was not a law against something in the past doesn't mean that it didn't exist. It merely describes a social behavior at a specific time and place. It is possible that Pennsylvania would have passed legislation to regulate the practice if people started to drag cannons around Philadelphia. Because America didn't have a problem with gun violence at the time the Second Amendment was written, laws against certain types of weapons were not enacted until decades later. States passed laws that regulate and sometimes ban these weapons after the Jacksonian market revolution made it cheap, reliable and easy to conceal handguns more widely available. While some judges from the South considered these laws to be impermissible violations for the right to keep, bear and arm firearms, most judges deemed them acceptable. Even some southern slave-owning judges were sympathetic to gun rights. They acknowledged that the limits on dangerous weapons being carried in public was a legitimate exercise of state police powers. Contrary to the NRA's belief that guns make us free, the Second Amendment was written by an instrumental generation who saw guns as tools that could either be used for good and bad. The Second Amendment wasn't America's first freedom. Instead, America's right to make laws to protect public safety and health was Americas true first liberty. In the first decades of the 19th Century, judges began to reformulate this 18th-century right into a new judicial doctrine called the police power. It is crucial to understand the power's significance and how it is connected to Second Amendment jurisprudence. This will help you to see the original meaning of the right to keep, bear and bear arms and not the historical cartoon created by gun rights advocates.AdvertisementAdvertisementGun rights activists believe that the police power is an absurd tool to support libertarian fantasies. Their view of the police power is similar to frequent flyer miles. If you don't use it, it goes away. Gun rights activists have used a variety of cases to argue that the absence of laws is evidence of the existence or lack of a right. The absence of a law is not a reliable indicator of rights. The absence of regulation is more often a sign that there is no problem and therefore no need for legislation. The Supreme Court described the police powers as follows in the License Cases (1847).The police power is not subject to any specific limitations, but must be used in accordance with the changing needs of society. New and more vicious indulgences are born as a result of the rapid growth of society, wealth and civilization. These need to be controlled by legislative power. The extent and the place at which this power is exercised will depend on the nature of the evil being addressed.Biden may not have understood the history in this case, but the constitutional principle he identified at the time of passage of the Second Amendment was uncontroversial. Biden's understanding of constitutional law is better than those gun rights libertarians that have ridiculed him. The people, acting through their representatives, have the extraordinary power to pass laws that regulate and, where appropriate, ban weapons that are a danger to public safety. While one can debate the merits of such legislation's policy, the constitutional validity should not be disputed.
