Sunday, December 18, 2016

Fictional Character Quoted as Authoritative on Second Amendment

West Wing Character Toby Ziegler

Having observed debates about the Second Amendment for 50 years, it is surprising to find something new. Tosten Burks, writing at, uses a quote from a fictional character as an authoritative source on the Second Amendment. From
The Constitution’s most controversial amendment reads: “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.” The NRA has spent much of the past 40 years broadening the interpretation to expand the gun market.

The original intent, however, is best explained by Aaron Sorkin's West Wing character Toby Ziegler, who put it in more liberal terms: “The words ‘regulated’ and ‘militia’ are in the first sentence. I don’t think the framers were thinking of three guys in a Dodge Durango.”
Using a fictional source when there have been volumes of scholarly research written about the subject is rather amusing, especially since the quote is so content free.

Burks deserves some credit. He is writing from Los Angeles, so his environment is decidedly anti-rights. He gets some things horribly wrong.

He states, as a matter of fact, that "stand your ground" was important in the George Zimmerman trial. 
Also known as the “shoot first” law, Stand Your Ground enables the right to use deadly force in self-defense. This was George Zimmerman’s successful argument for fatally shooting Trayvon Martin.
But Zimmerman's defense team never used the "stand your ground" defense, nor was it relevant in the case.

Burks claims that the Kel-Tec PMR-30 is a favorite among concealed carriers. That was a surprise to me.  He also calls the SIG MCX an "assault rifle", but is careful to differentiate the Smith & Wesson M&P-15 as a semi-automatic rifle.

Most of his characterizations of concealed carry, open carry, castle doctrine, and stand your ground laws are adequate.  He does a decent job of directing people to Pink Pistols, The Well Armed Woman, and  The National African American Gun Association.  I suspect he would have included Jews for the Protection of Firearms Ownership if he would have found it on his Internet searches.

I found the article more amusing than discouraging. My impression is that Burks is a well intentioned writer who is severely hampered by his "progressive" information bubble.  The least informed parts of his article are ubiquitous false narratives in his environment.  He has no idea that the "collective right" theory of the Second Amendment was invented by the "progressive" Kansas Supreme Court in 1905, without any precedent being cited. He has no idea the Sig MCX and  S&W M&P-15 rifles, operate pretty much the same way, and are treated the same by most legislative bodies.

It would have been nice if comments were allowed at the site, It appears that Burks can be educated. Unfortunately, there was no provision for commenting.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch


Old Kentucky Guy said...

Not that facts matter when dealing with ignorant people but...

At the time 2A was written, "militia" referred to ALL able bodied men, not a formal organization.

"Well regulated" meant nothing like the contemporary meaning. It mean well trained. Not organized and run by the government the 2A was written to protect us from.

Logic. Why would the framers write something designed to inform and remind tyrants we can and will protect ourselves from them and give the tyrants control of it?

Anonymous said...

kybourbonboy said...
>>"Well regulated" meant nothing like the contemporary meaning. It mean well >>trained. Not organized and run by the government the 2A was written to protect us >>from."

This is incorrect. The word regulate had multiple meanings in the 1780s, just as it does today. And the particular meaning which has to do with government rule-making was used exactly the same way in the 1780s as it is today. Since the Bill of Rights is a document discussing government rule-making, this meaning of regulate is certainly the one being used in the Second Amendment.

Anonymous said...

Well You really have no complaint if you fail to read the constitution , study it and know what is in it. nothing to brag about if you only know what the second amendment says you need to know why it says what it says. Understand the history and know why it was written to start with. then get off your ass and challenge legislators on their knowledge of it and vote intelligently. If you do not vote then shut up you have no complaint. Voting is a right and a duty.

Anonymous said...

you would be correct if the federal government was intended to oversee the was not. states oversaw the militia's and expected "every able bodied man" to not only own his own weapon, but be proficient in it's use and operation should the need arise to call upon the militia to protect the people from their government, the reason the militia was created. in fact, it was a requirement that each state maintain their own militia. the militia, as described in the federalist papers are the people..."who are the militia, if not the people themselves". the intent was to maintain an armed populace of private citizens to be called up on by the state in defense of the state. they could also be called upon by the nation, should the need arise, so long as tyranny is not in place. well regulated DID mean well trained and proficient. it would be antithetical to create a militia to protect you from your own tyrannical government, and then have said militia be overseen by that very same government. this is how you know the meaning they meant to convey...well-regulated - well trained, proficient in the use and operation of your weapons/gear and ready to be called upon to fight in defense of your state and your nation. they believed if you were fighting a tyranny in your own government that you WERE fighting in defense of the nation.

Old Kentucky Guy said...

David I. Caplan, who has examined this issue in depth, provides this analysis:

"In colonial times the term ‘well regulated’ meant ‘well functioning’ ― for this was the meaning of those words at that time, as demonstrated by the following passage from the original 1789 charter of the University of North Carolina: ‘Whereas in all well regulated governments it is the indispensable duty of every Legislatures to consult the happiness of a rising generation…’ Moreover the Oxford English Dictionary defines ‘regulated’ among other things as ‘properly disciplined;’ and it defines ‘discipline’ among other things as ‘a trained condition.’"

After reading your comments I decided to do more reading of scholarly research as regards the inclusion of the words "well regulated militia".

If you are interested I recommend this, I found it to be quite informative:
A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America

Thomas Cooley's General Principles of Constitutional Law

Thomas Cooley was the most renowned American legal authority of his age.

Cooley became the first Dean of the University of Michigan Law School, and later sat on the Michigan Supreme Court; Roscoe Pound named him as among the top ten American judges of all time, and one scholar considers him "the most influential legal author of the late nineteenth and early twentieth centuries.

His book, The General Principles of Constitutional Law was released in 1880. Cooley treated the Second Amendment as an individual right. Indeed, Cooley went further and pointed out that if the right to arms were limited to militia-related arms possession, then the guarantee would be meaningless.The very government that it was meant to check-and that could control the definition of the militia-would be in a position to define its boundaries and negate any checks upon itself, defeating the Framers' intent.

"It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But... if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose."