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The Musket Amendment and the Internet Bill of Wrongs

I imagine it is much easier to be both a social media user and a heart surgeon than it is to be a social media user and a lawyer, law dean, or law professor. I have never found a Facebook heart surgeon, but the Internet has 6 billion constitutional lawyers. If you want to know what the Constitution says or means, just log onto Facebook and every friend you have will tell you.

In the wake of the terror attack in Orlando, I learned many things about the Constitution, the Bill of Rights, and the Second Amendment. These interesting interpretations are significant, and I must have missed them the day I taught law in law school… or when I took Constitutional Law.

I learned, for example, that the Second Amendment only protects muskets. Yep. That was new to this guy. I didn’t quite get a legal citation for the authority, but that’s the hottest ticket in social media today. It’s the musket amendment, because as one poster swore “the founding fathers never could have imagined weapons like we have today.” Now, fascinating as that “history” may be, it seems at odds with both reality and common sense. Moreover, many pushing the musket amendment theory are living document, anti-textualism, anti-originalist progressives. I suspect they don’t subscribe to the notion that voters should be white, male, property owners, as the founders only imagined.

It was a surprise to read the purist’s interpretation of the musket amendment on the Internet. Surely, those who believe in the musket amendment ought to be confined to expressing their opinions by quill pen or via the street-corner soapbox. The temerity of using their First Amendment rights in a manner never before considered by the founders was seemingly lost on these scholars. Of course, for people bound and determined to think, rather than merely feel and emote, we recognize that technology changes, but our constitutional rights do not. Rest assured the right to keep and bear arms remains an individual right, still part of the Bill of Rights.

One does not need a law degree to understand the Bill of Rights. They are the first ten Amendments. Indeed, the Constitution would not have passed had an agreement not been reached to include the Bill of Rights and subsequent ten Amendments. One can get this in third-grade civics. The Bill of Rights is part of a set of express rights guaranteed to individuals. These are not rights given by or certainly to the government. This is news to some Internet law professors. In the Constitution, the rights of the people are infinite and unlimited; the powers of the government are narrow and finite. It is no wonder Americans, looking at the vast expanse of our modern American government, are so confused about the Constitution and the Bill of Rights.

Social media law hobbyists also think the “militia” in the Second Amendment represents a standing government army. It does not. Even President Obama knows that to be incorrect. Why would a section about the army be included in the individual Bill of Rights? Indeed, the Second Amendment is an “Amendment,” and the Constitution as passed very nicely covers standing armies in other sections under the powers and duties of the government. Those who see the Second Amendment as a tool for raising an army clearly have a bill of wrongs, rather than a Bill of Rights.

The Second Amendment of the Constitution does not offer a limitless right to carry any weapon anywhere. In fact, none of your constitutional rights are without some limitation. Amending these rights, or limiting the rights that are explicitly guaranteed to us, ought not be done lightly, and indeed should rarely if ever be done outside the legislative process. The Constitution was designed to be difficult to amend because we did not want to suffer under a tyranny of the majority, nor did we want too much power held in the hands of any branch of our republic. If we want to have a national conversation to change our Constitution, that is right and proper in our representative republic. Making up phony history is not.

The Internet is clogged with people who have confused their opinion with legal reality. For those who post and re-post their legal interpretations from social media, they ought to heed the advice often improperly but humorously credited to Abraham Lincoln, “Don’t believe everything you read on the Internet.”

If that advice is not plain enough — take it from me — the founders never created a musket amendment. Likewise, the founders never envisioned a republic where citizens would willingly disarm themselves in the face of threats, foreign or domestic. And, with the certainty of history, your founders never saw government as the individual’s sole or primary means of security for himself, his family, or his country.

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