I don't make pro-gun arguments from the position of the Second Amendment. Just because something is legal doesn't mean that it is just, right, or ethical. The Constitution has several things in it that have been overturned since it was written, and the Founding Fathers were asshole slave owners. However, many of the anti-Second Amendment arguments are fatally flawed.
"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."
Looking at the writings of the asshole slave owners at the time it is clear they meant "People" (White male landowners at the time) should be able to own firearms. But putting the historical context argument aside the language of the amendment itself is both clear that it's meant to be an individual right and consistent with other rights that we've interpreted in the modern time to apply to all people.
Let's get the pesky "Well regulated militia" part out of the way. Well regulated means trained, equipped and drilled. Militia is an irregular force of "Citizen Soldiers." Specifically as the early US didn't want a standing army, but the ability to call up a local force to deal with military issues, including what we would now call police issues (riots and so forth). In order for an effective militia to exist without a large government expenditure, they have to train and equip themselves. Therefore people need to be able to be armed. And a strong argument can be made that this entire amendment is no longer needed as we have a standing army, the National Guard, state militias and a militarized police force. Further, these local militias were slave patrols and reinforced the bigotry and classism of the day.
The 2nd amendment doesn't address those organizations as they didn't exist at the time and were considered antithetical to personal and State freedom. The militias of the era were meant to be a local check on Federal and State overreach as they can't suppress the people if the people are the military. (Again, "people" for their purposes were white landowning men). It's actually a pretty Communist idea if you think about it from the modern perspective. An army of the people that is empowered to rebel if the government isn't serving them. In reality, the militias organized in ways that reinforced the power of the States and Federal government and marginalized people have been killed, enslaved and interned without being able to defend themselves.
But that clause only describes the "why" not the what. "The right of the people to keep and bear arms shall not be infringed" stands by itself. It is the core of the amendment. Note that the Constitution talks about the Federal Government, the States and the people. The people in this amendment are the same people in all the other amendments. The amendment isn't saying the states have a right to arms. The amendment isn't saying the militias have a right to arms. And it is clearly a check or the Federal Government, just as the rest of the Bill of Rights is. And we've decided that "the people" in the other amendments applies to just about everyone, even if in practice some people are more equal than others.
Some will bring up how the Heller decision overturned the stare decisis to reinforce the idea that the Second Amendment is an individual right. But stare decisis is not holy writ, we overturn it whenever we find that it's not consistent with our modern understanding. That is a core part of what the Supreme Court should do. We don't think overturning Dred Scott was wrong and we'd be happy to overturn Citizens United. But for the sake of argument, let's look at the previous ruling, Miller. Miller was a bootlegger and if I remember correctly, a murderous felon. And he was convicted for possessing a short barreled shotgun. And the Supreme Court upheld his conviction as a short barreled shotgun wasn't considered a militia appropriate weapon. By the logic of Miler, the AR-15 is clearly a protected weapon as it is suitable for militia use. Miller opens the door for machineguns and rocket launcher to be considered second amendment protected as they are arms in common use by the military. A Miller interpretation would be less protective of handguns and other more civilian weapons. So I don't think leaning on stare decisis is the best antigun argument.
Site Navigation