The right to keep and bear muskets

While supporting the originalist framework of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson (which overturned Roe v. Wade), self-proclaimed constitutional law scholars such as Senators Ted Cruz and Tom Cotton abandon any such reliance on history and tradition (i.e, “original intent’) when considering reasonable public safety limitations of Second Amendment rights. Such fractured logic substantiates nationwide criticism that their dogmatic opposition to reasonable, common sense gun controls rests more on maintaining gun lobby political donations than on constitutional fidelity.

In the 2008 majority opinion written by the late Justice Antonin Scalia in D.C. v Heller (554 U.S 570), the Supreme Court supported an individual’s Second Amendment right to bear arms. The majority also unequivocally held that its decision did not confer to individuals the right to keep and carry “any weapon whatsoever in any manner whatsoever and for whatever purpose.” In Heller, the Court affirmed its 1939 decision in U.S. v Miller (307 U.S. 174) which upheld the ban on individual possession of sawedoff shotguns. With reliance upon the historical record implicating the Second Amendment, Justice Scalia’s majority opinion in Miller noted that the rights of states to impose concealed carry restrictions, to preclude felons and the mentally ill from possessing firearms and to create zones where firearm possession would be expressly prohibited passed constitutional and historical muster.

Yet, in the face of such clear and unambiguous language from a champion of original intent, National Rifle Association. political donnees continue to pledge their unwavering (albeit unsubstantiated) support of an inviolate Second Amendment. If we take the objections to reasonable, common sense, constitutional gun control advanced in the screeds of Sens. Cruz and Cotton (and their ilk, such as Texas Gov. Greg Abbot), we can only conclude that the historical record mattered in overturning Roe (which comports with their political ideologies) but should be ignored in opposing laws to safeguard the lives of schoolchildren.

Perhaps these Republican elected officials (and the majority of GOP senators) fear the logical extension of an Alito-style historical basis analysis to public safety laws involving semi-automatic weapons of war and would rather be hypocritical than unelected. Perhaps they sense that, using the logic of the decision overturning Roe v. Wade, the only right conferred by the Second Amendment is the right to possess those weapons which the historical record reveals were the only weapons possessed by individuals at the time the Second Amendment was ratified. For you see, the logical extension of applying Justice Alito’s reasoning from Dobbs v. Jackson to the Second Amendment is the recognition that the only weapons safeguarded from reasonable, common sense gun controls are muskets, canon and (I suppose) the catapult.

However, we know all too well that, rather than address the incongruity of their support of a historical basis to overturn Roe with their abject refusal to apply the same standard to common sense gun control, Republican lawmakers like Sens. Cruz and Cotton would rather engage in obfuscating the irreconcilable hypocrisy of their claiming to be both “pro-life” and antiprotection of schoolchildren.