During a discussion on Fox News’ “Strategy Room” last week, Fox News contributor Ellen Ratner – a veteran journalist who relies on the First Amendment – candidly acknowledged, “I am one of these people who is not supportive of gun rights.”
This came during a 3 ½-minute debate over national concealed carry reciprocity legislation. Joining anchor Patti Ann Browne and Matt Keelen, founder of the Keelen Group, Ratner continued that, in her opinion, the Second Amendment is about maintaining a “well-regulated militia.”
“I think that it does not give everybody a right to have a gun,” Ratner said.
Second Amendment activists might concur with Ratner so far as the contention that the amendment doesn’t “give” anybody anything. The prevailing wisdom in the firearms community is that the amendment protects and affirms an individual right, but does not create it. Still, Ratner’s comment suggests that gun rights advocates have much more to do in terms of outreach and education.
Ratner went on, observing, “There have been a couple of Supreme Court cases, one in the 30s, which actually promoted the fact that you can’t just have a gun, and then it got overturned recently in two other cases so, you know, it depends on who is on the Supreme Court for sure on this issue.”
Is Ratner’s recollection of the infamous 1939 ruling in U.S. v. Miller accurate? Not according to the late Supreme Court Justice Antonin Scalia, who authored the historic 2008 majority decision in District of Columbia v. Heller. Here’s what he said, on pages 49 and 50 of that landmark ruling:
“JUSTICE STEVENS places overwhelming reliance upon this Court’s decision in United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 4. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.”
“Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “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.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.”
A moment later in the Fox discussion, Ratner contended that the proposed reciprocity law “is insane because, again, it allows concealed permits to exist and I don’t think they should exist.
“But that’s just, you know, crazy old me,” she added with a smile.
Ratner is, according to an on-line biography, a news analyst on Fox and a White House correspondent and bureau chief for the Talk Media News Service. A veteran journalist, she has appeared on Fox frequently. She is also an accomplished author.