Before Gov. Andrew Cuomo and the state Legislature completed the enactment of the state's new gun laws, the National Rifle Association alerted its 4.9 million members — up by 100,000 since the Newtown, Conn., massacre — to "New York's assault on the Second Amendment."
Conservative talk radio, in almost choreographed lock step, has demonized our governor and Legislature by telling its listeners that our Founding Fathers wanted to guarantee that citizens could own any weapon they could carry and that they could carry those weapons wherever they wanted.
The new gun laws are not perfect. However, lost in the debate concerning important matters such as the disclosure of the names of gun owners and the increased stigma with respect to the mentally ill, there is the overarching matter of just what the Second Amendment was designed to accomplish. The more I hear and read, the more it appears that the founders' real intent with respect to the Second Amendment is becoming lost.
Supreme Court Justice Anton Scalia's majority opinion in District of Columbia v. Heller in 2008 accepted the argument made by the NRA that the Second Amendment gave any individual a right to own handguns. Of course, our Founding Fathers were speaking of muskets which, given the loading time of 15 seconds, was capable of firing four shots a minute — compared to an AK-47, which can fire 600 rounds in a minute.
It was Justice Scalia who has often said that there is no such thing as a "living Constitution." He asks: "What would a reasonable person living at the time of the ratification have understood those words to mean?"
Let's take a look. Even if we were to substitute "handguns" for muskets, as did the Supreme Court, can we really say — as does the NRA and its minions — that our founders wanted to vest individuals with such awesome power as AK-47's when those individuals were not part of a "well-ordered militia"?
History tells us "what a reasonable person living at the time" would have understood and what the founders intended by the Second Amendment. The NRA isn't even close to the target.
Before there was a Constitution, the 13 original Colonies were bound together by the Articles of Confederation. Those articles had no provision for a standing army, and the Confederation wanted none.
The only "army" they wanted were the state militias, part-time citizen armies, which were lent by the states during the Revolutionary War.
To be certain that the new "monster government," as it was called, would not create such a "standing" or national army, the very first Congress limited a national army to 840 men.
"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," says the Second Amendment.
When James Madison, the father of our Constitution, proposed the Second Amendment, Elbridge Gerry argued on the House floor that the state militias had to be constitutionally protected.
"Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise an army upon their ruins," he said.
For two centuries, and after many court decisions, the meaning of the Second Amendment was clear — to protect the right to bear arms when the person bearing those arms was the member of a "well-regulated militia."
Warren Berger, who had been the conservative chief justice of the Supreme Court, wrote in 1990 "that "Second Amendment clause must be read as though the word because was the opening word of the guarantee."
Even Scalia wouldn't hold in the Heller case that it constitutionally protected someone carrying an assault weapon outside of his home — a thought the NRA undoubtedly will use in its attempt to judicially nullify New York's new gun laws.
Again, to quote Justice Berger, he said of the NRA's efforts to undermine gun control laws by basing its reasoning on the Second Amendment was: "one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime."
Sol Wachtler is the former chief judge of the state of New York and a distinguished juror in residence at Touro Law School.