While appearing with Sean Hannity, Fox News's Geraldo Rivera tried to put an "exclamation mark" on the gun debate days after a pair of shootings in California.
"This is what weapons looked like," Rivera said as he was handed an antique musket. "This is what they looked like when the Second Amendment was passed. This is what they looked like."
After Hannity mocked him, stating, "You're going to get arrested in New York for having that," Rivera continued to press the point that when the Second Amendment was ratified in 1791, modern firearms such as the AR-15 were unimaginable to the Founding Fathers.
Rivera is hardly alone in trying to make this point.
Last summer, in an op-ed, The New York Times questioned "A Supreme Court Head-Scratcher: Is a Colonial Musket 'Analogous' to an AR-15?" This argument is made time and time again, often with people taking to online forums and social media to try to make the point.
Oh, the irony.
The Founding Fathers could have absolutely never envisioned the Internet, as it would have required understanding the concept of computers, binary code and software, communications involving electrical currents, and a plethora of other technology that were far beyond the understanding of the late 18th century.
It may be true too that trained soldiers of the American Revolution could fire perhaps three aimed shots a minute, but the Founding Fathers certainly would have understood the concept of repeating firearms. There were already multi-barreled weapons and even early repeaters that could shoot dozens of rounds in a short time.
Yet, there are those who continue to suggest that the Second Amendment shouldn't apply to modern firearms, simply because they didn't exist at the time. By that logic, of course, the First Amendment would only apply to the printed word.
Radio, television and the Internet shouldn't be protected by the First Amendment – as it would have been impossible for the Founding Fathers for them to have even comprehended our modern technology. More importantly, even suggesting that the Second Amendment doesn't apply to modern firearms could open a legal loophole that would allow the government to shut down any website, and block any radio or TV station it sees fit.
Review of the Words
Those that argue that the Second Amendment is vague and confusing also need to read the First Amendment again:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The first and third parts are crystal clear, but the second part clearly confuses people today. This is why when Facebook blocks certain posts, or Twitter bans users for not following its rules, there are those that suggest it is a "First Amendment Issue," which it most certainly is not.
"Freedom of speech" actually only applies to the government, not a third party. Thus Facebook's ban on certain discussions is no different from McDonald's "No shirt, no service" policy.
More importantly, the issue "of freedom of speech, or of the press" still doesn't specify a particular medium. This might seem like nitpicking, but again, in 1791, there was no radio or TV. "Freedom of speech" literally meant what people might say publicly, while "or of the press" was to allow the media to be critical of the government without fear of retribution.
As new technology was adopted to spread communication, the new methods of "transmitting" these opinions were also protected. That included the telegram, the telephone, radio, TV, and the Internet respectively. In fact, the 1934 Communications Act designated broadcasters as speakers, thus officially granting them First Amendment rights. While the Federal Communications Commission (FCC) does "regulate" some speech that is provided over the public airwaves, even this is generally limited to a few specific areas including indecency, obscenity, sponsorship identification, hoaxes, and accessibility to emergency information on television among others.
Moreover, the FCC does not generally regulate speech transmitted by cable or satellite, while it doesn't regulate speech on the Internet at all. That is why the FBI, not the FCC, investigates issues related to child engagement online.
It is worth noting that the law meant to provide these rights also came as the National Firearms Act of 1934 stripped away some Second Amendment rights by regulating the ownership of certain firearms – notably machine guns.
The Founding Fathers' Views
As has been stated, attempting to suggest the Second Amendment should only apply to muzzle-loading muskets is naïve and would suggest the First Amendment would only apply to manual printing presses of the 1790s. But perhaps we should consider the world of the Founding Fathers.
We like to forget the fact that 17 of the 55 delegates to the Constitutional Convention – all of whom were white men – were slave owners, with them owning in total 1,400 slaves. Of the first dozen presidents, eight were also slaveholders. This is meant to defend them, but it is important to note that this was acceptable in the world they lived in. Yet, it is doubtful the Founding Fathers would have found our modern music, video games, TV shows, or other entertainment acceptable in the least.
This point speaks volumes about their likely view of what the First Amendment would or should allow, yet they understood the importance of being armed to prevent tyranny.
Those who try to suggest that the AR-15 would be a problem to men like George Washington, James Madison, and Alexander Hamilton need to study history a bit more. It is likely, even as they were flawed men, that they'd be far more upset about what the First Amendment has allowed.