Tuesday, April 10, 2018

The Khan Academy Teaches About The Second Amendment

As you may know, the Khan Academy is an organization that prepares videos on specific topics to assist students and home schoolers. It started with videos on mathematics and physics, but has expanded into many other topics. The Khan Academy is in the process of releasing videos on the U.S. Constitution, including the one below on the Second Amendment.

       I have to admit that I was pleasantly surprised with this video. Rather than the standard anti-gun polemics I am used to seeing from the media, the video presented some discussion from a lawyer and a law professor that acknowledged the Second Amendment provides the individual right to bear arms, and that the purpose is two-fold: self-defense and defense of the community/nation, including defense against tyrants.

       It is not perfect, however. First, I don't believe that the discussion on "well-regulated" was quite correct, since it seemed too focused on governance of militias rather than well practiced and disciplined.

       Second, I don't agree with the interpretation given the U.S. v. Miller decision. The lawyer interviewed seemed to suggest that any comments in Miller were mere dicta, and that the court's opinion decided nothing. That is incorrect, as the case set out a clear standard for the lower courts to use on remand to determine whether the weapon at issue (a sawed off shotgun) was protected: and that was whether it was a weapon that was used by the military and/or one in common use for defense.

       Third, I took umbrage with the conclusions on what limitations on firearms are permitted under the Second Amendment. The lawyer (who argued Heller), correctly noted that we could look to history on what restrictions were allowable, but then conflated state and local restrictions in the 19th Century with what the Federal government was permitted to do. What we see in the 18th and 19th Century was that there was generally no restrictions on the types of arms: a private individual could purchase and own artillery, ship board cannons, bombs and explosive shells, gas shells (sulfur was used), and so on. In fact, for most of the first 100 years of the Union, the U.S. relied heavily on privateers (privately owned and outfitted warships) during times of war. The weapons that the British sought to seize at the beginning of the Revolutionary War included cannons and their ammunition.

       The lawyer also suggested that the fact that states or locales had regulated the carry of firearms in the 19th Century showed that such regulations should be acceptable (at least to some extent) under the Second Amendment. However, this takes such regulations out of context. During the period of time in question, the Bill of Rights were not seen to be restrictions on state or local governments. Thus, no one at the time would have found it inconsistent that a provision in the Bill of Rights to the U.S. Constitution could prohibit the federal government from undertaking some action, but allowing the same action to be taken by a state or local government under its general police powers. My position is that applying the Bill of Rights to state and local governments (via the 14th Amendment) should not be a backdoor for expanding the powers of the federal government to act where they had no right to act before, but should limit the actions of state governments.

       Anyway, notwithstanding these caveats, the majority of the video was, as I said, surprisingly good. Check it out.

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