Spitzer says the original interpretation of the Second Amendment was not controversial in the way it has become politicized in the 20th century — and the debate about whether the Second Amendment protected only militia service or whether it also protected the personal right to own guns is a relatively recent one.
"As a matter of history, we didn't really see anything like the individual point of view emerge until the 20th century," he says. "That doesn't mean individuals didn't own guns or didn't think gun ownership was an important thing — of course they did — but the chief purpose that is cited for the individual ownership of guns is personal protection — from predators, from criminals or from marauding Indians or whatever threats might arise — but you didn't need the Second Amendment to ensure that civilians would have the right to defend themselves or to own a gun to defend themselves."
The modern debate about individual rights pertaining to guns, he says, began in the aftermath of Congress' enactment of the Gun Control Act of 1968, which attempted to control crime in the aftermath of the assassinations of John F. Kennedy, Martin Luther King Jr. and Robert Kennedy.
"In the 1970s, you see the Second Amendment rhetoric escalate dramatically as an argument against stronger gun laws and to identify gun ownership with American values and historical values," he says. "You find this increasingly heavy emphasis on Second Amendment rights and Constitutional rhetoric as part of the argument against enacting stronger gun laws."
"The burden was placed on each militia-eligible man to obtain firearms, to keep them in good working order and to bring them to militia service at such time when they were called up. In fact, Congress enacted a law in 1792 which required militiamen to have a working musket. ... That law was widely ignored, but it underscored the fact that the government didn't have the resources or ability to arm militia citizens, and so the burden fell on the [citizens]."
What is also interesting about this interview where they talked about Scalia, who supported, an went against precedence, the idea the 2nd amendment was for personal protection. What is interesting about this is how Scalia always advocates for a literalist interpretation of the law, in which personal ownership is no where mentioned.
Should the 2nd amendment include the right to own guns? Can this be justified from a literalist perspective? Can this be justified at all? Do we even need this amendment anymore?
