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The Framers Knew the Risks of Keeping and Bearing Arms are Far Outweighed by the Benefits

va capitol open carry
Open carry…formerly legal in the Virginia capitol. (Courtesy Jeff Hulbert)

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Gun rights advocates argue their constitutional rights are being infringed. Erik Jaffe, an attorney for Schaerr Jaffe who represents the Firearms Policy Coalition, which submitted a brief in this case, said people treat Second Amendment rights differently because they are afraid of guns. 

“Let’s ask the question, are they being consistent in how they apply constitutional principles to that right,” Jaffe said in a phone call. “I understand they don’t like the right and I understand people are terrified of guns, I get that. … People are terrified of all kinds of things, yet if it were speech, we would never, never let courts get away with what they’ve gotten away with in New York and California.” 

Yet another brief in the case was filed by Texas Senator Ted Cruz and 24 fellow Republicans including Minority Leader Mitch McConnell, who take an originalist view that individuals should be able to carry guns in public because the framers of the constitution said so. 

“The inclusion of an individual right in the Constitution reflects the Framers’ determination not only that the benefits of guaranteeing that right outweigh the costs, but that no future legislature— including Congress—should have the ability to second-guess that determination,” their brief states. 

The senators’ brief argues the framers understood the gun violence risks posed by the carrying of guns and decided to allow it anyway so the court should follow that precedent despite arguments that allowing more guns on the streets leads to more gun violence. They argue that the benefits outweigh these risks. 

“In short, the Framers and ratifiers of both the Second and Fourteenth Amendments knew that the risks and benefits of arms — criminal misuse and defense against the same—were inextricably intertwined in the very concept of “bearing” arms,” the brief states. “They weighed those considerations and chose a broad right to keep and bear arms, rather than broad discretion to disarm the public, as not only the best solution, but one to be enshrined as the supreme law of the land — above any contrary choice made through mere legislation.” 

— Kelsey Reichmann in Justices barreling into gun rights standoff have little precedent to guide them

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