“Well Regulated” But Not Well Read: James Talarico Makes Curious Claim on Second Amendment
By Jonathan TurleyA virtual cottage industry has emerged among people finding James Talarico clips espousing everything from declaring his campaign meat-free to there being six genders to God being non-binary. One recently uncovered video from a meet-and-greet, however, attracted my interest and deepened my concerns about Talarico. It shows Talarico explaining why sweeping gun control laws do not violate the Second Amendment. The reason, he declared, is that the Second Amendment expressly embraces gun controls by referring to the right as “well regulated.”
In the clip, Talarico mocks those opposing gun control measures and bans as not taking the time to actually read the Amendment:
What he omits is the word following “well regulated”: “militia.”
It is hardly a long read, so here is the language:
The term “well regulated” was not a reference to regulation in the contemporary sense. It was used to mean orderly or well-maintained. Militias were considered the backbone of the American military, particularly by those who feared a standing army. Some militias were less capable than others in the Revolutionary War. A well-regulated militia meant state militias that were combat-ready.
The individual right to possess guns was viewed as central to maintaining such militias. However, the Supreme Court has repeatedly held that a “well regulated militia” was not a limitation but a justification for the individual right.
Notably, Talarico’s rationale is different from the classic interpretation against reading the Second Amendment as an individual right. Under that construct, it is the word “militia” that conditions the rest of the amendment, stating the purpose of the right to possess firearms. It is not that the militias are “well regulated,” but rather that possessing guns was protected in order to (and to the extent of) maintaining militias.
Many of us reject that view and believe that the drafters were protecting a long-held and cherished individual right. The reference to the militia was to a common rationale or justification for protecting that individual right.
Talarico made the comments in support of a ban on certain commonly used guns such as an AR-15. Notably, those bans will soon be before the Supreme Court after the justices accepted review in Viramontes v. Cook County and Grant v. Higgins.
The grant of certiorari follows the Court striking down Hawaii’s “Vampire Law” in Wolford v. Lopez, which barred gun owners with concealed-carry licenses from bringing guns onto private property unless they had explicit permission from the owner. That decision again reaffirms the individual right under the Second Amendment and clearly does not embrace Talarico’s “well regulated” rationale for gun control.
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