We don’t really talk that much about David Hogg anymore, as he no longer seems to be the darling of the anti-gun movement he once was; although one might argue he was never much more than a suitable tool for those determined to undermine the Second Amendment. Maybe the anti-self-defense crowd finally began to realize, as we did when he first began his campaign against our right to arms, that he is little more than an ill-informed, self-obsessed attention-seeker.
That said, there are those times when Hogg tweets something that is so ridiculous that it might need to be mentioned, just as a reminder as to how little he knows about a subject in which he has been involved for several years.
On February 19, the Harvard student tweeted:
“After reading about the history of the second amend and talking with a lot of hist & law professors- I believe the second amendment has been intentionally misinterpreted. It was never meant as an individual right it was created to protect state militias like the national guard.”
So, a kid that has spent the past several years calling for banning guns and imposing Draconian restrictions on law-abiding gun owners now says he believes the Second Amendment does not restrict the government from imposing the restrictions he has been promoting.
That seems rather convenient.
Of course, David doesn’t mention what history texts he has read, or who comprised what he called “a lot of hist & law professors,” but if he only sought out material and professors that support this outdated and discredited viewpoint, then what he has achieved is not any sort of enlightenment; it’s called confirmation bias.
But let’s explore the (unlikely) possibility that he did speak with professors who do not share his view that the right to arms and self-defense exist.
If he did actually speak with any professors that correctly view the Second Amendment as protecting an individual right against infringement by the government, then he seems to be accusing those professors of “intentionally misinterpret[ing]” the Second Amendment.
It sounds like a polite way of calling someone a liar.
That is a fairly serious allegation for a mere student to be making about an actual academic. It reeks of arrogance, not to mention the utter contempt Hogg seems to imply he has for someone who has spent a career studying history and/or the law.
The gun-ban advocate followed up his initial tweet with additional evidence of his lack of understanding of our nation’s founding documents, as well as the basic written word:
“It says well regulated militia for a reason. The ‘shall not be infringed’ part means the federal government is not allowed to forcibly disarm state militias. I’m not alone in this interpretation. Over 100 years of jurisprudence back me up on this.”
Hogg mentions “jurisprudence,” but it seems he does not really understand the term. When contemplating the philosophy of law in the United States as it relates to the Second Amendment, the longest held view of what it protects is an individual right; a view that goes back more than 230 years. There are countless quotes from our Founders—many of whom were deeply involved in the process of writing, debating, and ratifying the Second Amendment—referring to the right of individuals to possess firearms. Even those quotes that mention a “militia” do so in the context of it being comprised of individual citizens who are expected to supply their own arms.
But if Hogg was referring to jurisprudence as it relates to court rulings, that, also, has historically supported the individual rights viewpoint. Especially as it relates to decisions at the highest level—the Supreme Court of the United States (SCOTUS or the Court).
Lower courts often have differing viewpoints when it comes to what is and is not protected by the Constitution, but it is SCOTUS that is the final arbiter when there are conflicting viewpoints on specific constitutional matters in lower courts.
Although SCOTUS has taken up far fewer cases related to the Second Amendment than, say, the First, Fourth, or Fifth Amendments—Amendments virtually everyone agrees protect individual rights—the Court has been quite consistent in those cases.
In United States v Cruikshank (1876), the Court clearly refers to the Second Amendment protecting a right of “the people,” and the term “militia” is not found in the ruling.
In Presser v Illinois (1886), the Court did use the term “militia,” but also refers to the Second Amendment “securing to the people the right to keep and bear arms.”
United States v Miller (1939) also has the Court using the term—this time capitalized as “Militia”—and includes a great deal of reference to its history. It is this case (along with a couple lower court rulings) that many in the anti-gun movement try to argue “proves” their theory that Second Amendment protections are somehow dependent on some sort of involvement by individuals with a “Militia.”
But the Miller case says no such thing. It merely held that the firearm in question, a short-barreled shotgun, was not a type of arm that was protected from strict regulation. The Court specifically noted, “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” The Court went on to refer to the “Militia” as being comprised of “civilians primarily,” then wrote, “And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
While the Miller decision was in error to say that short-barreled shotguns were not ordinary military equipment (they were at the time, and are today), the reference to “bearing arms supplied by themselves and of the kind in common use at the time” clearly speaks to individuals personally owning the types of firearms anti-gun extremists, like Hogg, wish to ban today.
In fact, throughout the Miller decision are repeated references to historical precedence of not just individuals supplying their own arms for service in the “Militia,” but several references that would seem to mandate gun ownership for anyone who would possibly qualify for the “Militia.”
Then, of course, there is District of Columbia v Heller (2008), in which the Court clearly spelled out, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Granted, Hogg was only eight when this decision was handed down, so we can understand how it may not have been part of his reading at the time. But now that he is a student at Harvard, and claims to have read the history of the Second Amendment, we would expect him to have become familiar with it.
Or, perhaps, it is to the majority of Supreme Court Justices in the McDonald case that David is referring when he claims the Second Amendment has been “intentionally misinterpreted.” He seems to feel he would know better than the collective wisdom of the majority Justices—who, combined, had roughly a century of experience as judges at the time of the ruling, and far more collective time studying the law and our Constitution.
It may be that Hogg, or at least those professors with whom he has spoken, feel that the “unconnected with service in a militia” is some sort of red flag showing that this is a “new” viewpoint. In reality, however, the Justices likely felt it was necessary because some activist judges in lower court cases had been repeatedly twisting the Miller decision—and citing cherry-picked lower court rulings that failed to follow SCOTUS precedent—into requiring some sort of Militia-standard in order to qualify for Second Amendment protection.
But the simple fact is that, since Miller, which was arguably the case from which the Militia-standard sprang, some courts relied on the Militia-standard, while others relied on the individual rights-standard. Heller merely set the record straight, basing its opinion on historical records and actual SCOTUS precedent.
After Heller, the Court handed down rulings in a number of cases that continued to recognize the individual right standard for the Second Amendment that was originally envisaged by our nation’s Founders. As most readers know, these cases include the landmark rulings in McDonald v Chicago and NYSRPA v Bruen.
SCOTUS even has a number of cases, dating back to 1857 and continuing to 1990, where it has decided cases not related to the Second Amendment, but mentions it in the context of explaining individual rights.
David’s comment that he is “not alone in this interpretation” is a bit silly, as he is merely repeating what many other anti-gun activists have been saying for quite some time. People who hate the Second Amendment have been shouting “Militia” for decades, even as court rulings and historical research repeatedly disprove their false claims. This is not a new tactic, even if it may be new to Hogg.
But rehashing old, failed anti-gun tactics is kind of David’s thing. Recently he suggested anti-gun extremists try to “treat guns the way we treated cigarettes 30 years ago.” Again, this is not a new idea. The gun ban community has long been trying to vilify guns and gun owners through advertising, and damaging gun manufacturers through litigation, just as others (and sometimes the same players) did with tobacco.
Perhaps a future tweet from Hogg will announce a “new” plan to go after “Saturday Night Specials.”
Ultimately, David Hogg is simply another anti-gun activist, and like most others, he is prone to making false claims about a subject for which he has little understanding. Sometimes they warrant addressing, although most of the time they do not. But when he seems to call into question the wisdom and integrity of those with far more knowledge and experience on matters like the Second Amendment—especially when he is questioning honorable Justices of our nation’s highest court—we feel that should be addressed.