Antonin Scalia doesn’t often get credit for being the “Daddy Of Gun Control”, but, in spite of himself, he is. In writing for the 5-4 majority in Heller, Scalia argued that one didn’t have to be part of any militia in order to keep and bear arms. Individuals could “keep and bear arms” in accordance w English Common Law. Of the gun rights guaranteed by the Second Amendment, he says “we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” No argument. It’s written very clearly: “…the right of the people to keep and bear arms, shall not be infringed”. Further, Scalia wrote “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Agree! No one was parsing any words. Madison’s audience understood his words to mean what he meant them to mean. The word Scalia – and even John Paul Stevens writing the descent – bore in on was “bear”. Heller’s concern is simply who can “bear” arms and do they have to be part of any actual militia. “No,” said Scalia in Heller – any individual can keep and bear arms, militias be damned!
But, if you read through the Heller decision in its entirety, the one word you won’t find – it’s not in the Second Amendment either – is “own”.
And THAT should be where our whole gun debate should be starting from – the stone cold fact that no right to individual gun ownership exists anywhere in the Constitution or Bill of Rights. The fact that we’re debating what we’re debating about guns is a testament to the gun lobby’s cleverness with jangly keys and squirrels. We’ve been distracted away from the most obvious challenge to virtually every gun rights argument: point to the word “own” in the Second Amendment.
The only argument I’ve gotten in response is that I’m parsing the word “own”. Ummm, no, I’m not. I can’t parse a word that isn’t there. If I tried to parse “bear” into “own”, they’d have a case. But pointing out a word’s omission isn’t parsing it, it’s pointing out that it ain’t there. And no matter how much dancing any gun rights advocate will do, there’s simply no way to tango, waltz or cha-cha ownership into the ownership free Second Amendment.
This emperor has been naked all along – naked of the word “own” – and it’s time we made the gun rights people address that fact. It’s time we stopped pretending that any gun rights argument holds any water. It’s time we called out this racist claptrap for what it is. And it’s time that we end the carnage in our streets and homes and schools and malls and music events and parties and hospitals and churches and synagogues and everywhere in between that guns cause. Especially since the right the killers all use doesn’t actually exist.
Look them up and parse them all you like. “Keep” and “bear” – like “possess” all describe a particular relationship between gun and bearer. Whether working for the militia or protecting home and hearth, citizens could keep and bear arms. Madison could just as easily have written that “the right of the people to OWN arms shall not be infringed”, but he didn’t.
He used “keep and bear” exactly as they were understood then – which is exactly how we understand those words today. One can “keep and bear” things without “owning” then – like a car rental. Or a gun rental even.
That’s the relationship with firearms James Madison described in the Second Amendment: the people (as part of their local militia) had the right to keep and bear arms. Madison avoided the word “own”. His avoidance of that word wasn’t an accident. It was a choice that LIMITS gun rights because, at any time, the actual owner of the firearms could come looking for them and demand their return – the ultimate right of ownership.
Madison understood ownership. He understood private property and property rights – and yet he didn’t extend full property rights to firearms. All he had to do to have made that a reality – and this argument moot – is use the word “own” in place of “keep”.
Scalia was very smart. If anyone knew how to parse the hell out of words, it was Tony Scalia. Read the rest of Heller for a master class in word parsing. But the word Scalia can’t parse – just like I can’t – is the word “own” in the Second Amendment because it just ain’t there.
What can we do with this fact? Well, for starters, we can press this argument on everyone within earshot. Let’s ask the damned question: what are we debating when the thing being debated isn’t actually debatable?