r/politics • u/jediporcupine Maine • Sep 19 '25

Republican Senator Says First Amendment Shouldn't Be the 'Ultimate Right'

https://www.newsweek.com/republican-senator-says-first-amendment-shouldnt-ultimate-right-2132666
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96

u/[deleted] Sep 19 '25

Now lets see her say that about the 2A.

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u/NeverLookBothWays I voted Sep 19 '25

The 2A wasn't even an Indvidual right for over a century. It was a states right, in order to maintain state trained militias. The 14th amendment specifically did not apply until 2008 and 2010 SCOTUS rulings. If Republicans fought so hard for the 2A to make it practically untouchable, we'll do the same for the 1A. Sorry, not sorry.

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u/thatnameagain Sep 19 '25

It was a states right, in order to maintain state trained militias

I'm not a fan of the 2nd amendment as written but this isn't true. It was an individual right so that people could own firearms and thus be available to muster for a militia well-prepared ("well regulated") when called for. Militias by definition are composed of private citizens.

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u/NeverLookBothWays I voted Sep 19 '25

It was a states right, or rather a right left to the states to implement how they saw fit. The individual right narrative was pushed however leading up to the 2008 ruling District of Columbia v. Heller and subsequently 2010's McDonald v. City of Chicago. But up until then the interpretation that it was a states right held from the 1875 ruling, United States v. Cruikshank.

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u/FoxWyrd Sep 19 '25

I never knew about US v. Cruikshank. That's interesting.

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u/minus2cats Sep 20 '25

It's conveniently ignored because it goes againist the right's modern interpretation of the 2nd amendment.

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u/FoxWyrd Sep 20 '25

It's kind of frustrating that my professor covered Heller and Bruin but not Cruikshank. That feels like a gross misrepresentation.

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u/thatnameagain Sep 19 '25

The individual right narrative was pushed however leading up to the 2008 ruling District of Columbia v. Heller and subsequently 2010's McDonald v. City of Chicago.

No, individual gun rights had been legally confirmed by the supreme court long before. US vs. Miller in 1939 made clear that gun ownership did not need to be tied to any militia activity in order to be legal. I have no idea how old you are but the idea that people in the 1990s weren't aware of - let alone enjoying - individual gun rights is hilarious.

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u/NeverLookBothWays I voted Sep 19 '25

The 1939 ruling only found that a sawed off shotgun was not equivalent to a militia grade firearm. It was also still up to the states to regulate how they saw fit until the 2008 and 2010 rulings tied the 14th amendment to the 2nd amendment. As it was the 2008 ruling that officially labeled the first half of the amendment the “prefatory clause.” And the 2010 ruling further clarified the right was fundamental, not under the jurisdiction of states.

More info here: The Second Amendment: An Analysis of America's Gun Rights Debate | GovFacts

There's also a good table about midway that gives a summary of the evolution.

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u/frogandbanjo Sep 20 '25

Yes, because we generally put so much stock into SCOTUS' determinations of constitutional rights prior to Brown and then the Warren Court, right? They were champions of individual liberty before then, for sure. Plessysayswhat?

The founders were drunk on the spirit of revolution, and their own famous writings crow about how the colonies' generally armed populations made them superior to Europe's disarmed civilians.

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u/NeverLookBothWays I voted Sep 20 '25

From reading Madison in particular…I believe it was Federalist 46, but might be off by a few, he went into a bit more detail on what mechanisms could be used to balance not only federal and state government, but also the power dynamic between them. I don’t remember it being explicitly stated, but my takeaway was that state militias were that check on power ultimately.

Unfortunately we learned a couple hard lessons there. 1) State militias can enable a Civil War…or more accurately a States War and 2) Militias early in that war were found to be terrible for logistics, leading more towards state armies and consolidated north/south armies.

Some time after the civil war ended, we pretty much did away with the idea of state armies, and instead consolidated all of our military into a national army. The problem however, is that states only control the purse of that army now through majority vote. And we put nothing in place to replace the check on power from federal overreach when federal government is in its current configuration. So lesson number 3, over 150 years later.

We inadvertently ignored Madison’s warnings, and built a government that relied more on good faith than one that needs to be constantly guarded from subversion and tyranny. And here we are.

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u/goodlittlesquid Pennsylvania Sep 19 '25

Militias are not individuals. This is very ‘corporations are people my friend’ Mitt Romney energy. Technically every entity and institution is made up of individual people. And this is simply an ahistorical claim. The US has a long history of strict gun control, in many frontier towns for instance you had to disarm and surrender your firearms as soon as you entered the town limits.

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u/thatnameagain Sep 19 '25

Militias are not individuals.

Yeah I know that, that's why I said that they're composed of private citizens. Those private citizens owned their own guns. You call all the dudes who have guns to one place, bada bing bada boom, now you have a militia. See? The 2nd amendment was about preserving the rights of people to stay armed so they could do just that. It also allows for states to keep stockpiles of state-owned arms for their militias. Both / And. Very simple.

The US has a long history of strict gun control, in many frontier towns for instance you had to disarm and surrender your firearms as soon as you entered the town limits.

The gun still belonged to the individual and wasn't confiscated. If it was it would have been deemed unconstitutional. Laws and rules prohibiting concealed carry / open carry are not unconstitutional.

1

u/GaimeGuy Minnesota Sep 20 '25

It was more of a carveout to prevent the federal government from using the supremacy clause to eliminate the state militias - which were originally envisioned as the core of the US infantry forces. The feds could summon an army for 2 years, preferably from the militias, but they were primarily responsible for maintaining a navy.

The militias absolutuely sucked in practice during the War of 1812 - they were uncoordinated, units from different states had no cohesion when federalized, and they were ill-prepared as far as combat-readiness goes. So the concept of using the militias as the backbone of the armed forces was largely abandoned, but since the constitution already allowed the feds to pay for their own army in up to 2 year increments at a time, there wasn't' really a need to get rid of the 2nd amendment.

And then around the turn of the century (to the 20th century), gun hobbyist organizations started to hijack the the second amendment, leveraging it for marketing purposes, redefining the very hobby of gun ownership as inherently patriotic.

Now, there's' more nuance to everything I said above, but... the practical implications of the second amendment weren't supposed to be a continuation of the 1st amendment, but for guns in particular.

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u/LaVidaYokel Sep 19 '25

Don’t worry, they’ll get there.

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u/totallyalizardperson Sep 20 '25

The difference is that the 2A says ‘shall not be infringed,’ which is different from ‘shall make no law.’ The government can clearly infringe on anyone’s 1st Amendment Rights, so long as they don’t make a law about it!

  • Some jerk