Based on how often I hear about a person’s Second Amendment right to own a gun, I had always assumed that the issue of interpretation was settled way back when. Turns out that the truth is otherwise.
I finished a book a few weeks back about the history of the Second Amendment, and got several surprises. Probably the most significant of those was that, for the first 230-odd years of the existence of the Bill of Rights, the Second Amendment was not interpreted to give people the Constitutional right to own a gun. The conventional wisdom (reinforced by multiple Supreme Court decisions and more than two centuries of case law) was that the Second Amendment was written as a way to create a check against an overly-strong central government. The manifestation of that intent today is the National Guard. Obviously circumstances have changed, and the National Guard looks about as much like a farmer-militia as the Bubbas running around in camo gear in the woods of Idaho look like a real militia.
Nothing in that background fits the scenario we see today. We have a standing army; we have National Guard divisions in every state, and the state of technology has advanced so far that it is unlikely that any true “militia” would be able to survive a pitched battle with a well-equipped army of even a small third-world country, let alone the mightiest armed force the world has ever seen, the combined United States Army, Navy, Marine Corps and Air Force.
So does the US Constitution guarantee the right for every person to own a firearm? It appears that it has been interpreted to do exactly that, and fairly recently too. Most people I speak with about this are surprised that the decision that enshrined this right was made in 2008, and none other than Antonin Scalia wrote the majority decision. The case was The District of Columbia vs Heller. Prior to this case, virtually every state had on the books a law that protected gun ownership. So why bother to add the District of Columbia? Couldn’t DC form its own law as a city that accomplished the same? Yes, of course it COULD, but in fact it hadn’t. Specifically, DC had enacted laws to limit gun ownership, as a law enforcement tool to cut down on violent crime. The District had fairly strict laws governing gun ownership.
However (and this is a big one), if it could be interpreted that gun ownership is a constitutional right, at least in federal enclaves, then it becomes a very different story. A constitutional right, once granted (or in this case, recognized), carries considerable weight. Then, any law…ANY law…that is proposed is considered against that precedent, and great care is taken to ensure the proposed law or regulation in no way violates Constitutional Law. It then becomes extraordinarily difficult to pass any kind of significant gun-limiting legislation at the city, county, state and federal level. Look at the current fight over abortion. The right to obtain an abortion is obviously not covered anywhere in the Constitution, but the Supreme Court determined that it was covered under the right to privacy. Interestingly, the right to privacy is itself not mentioned specifically in either the Constitution or the Amendments, but that’s because legal scholars (and the Supreme Court itself) have long held that several existing amendments in the Bill of Rights, as well as the text of the Constitution itself, imply that right. The Amendment against unreasonable search and seizure (the Fourth Amendment) is used as the foundation for Miranda laws; if there were no implied right to privacy then the Fourth Amendment would become meaningless. At any rate, when the right to abortion became recognized as a Constitutional right, it became extraordinarily difficult for any state, county or municipality to pass a law limiting access to abortions that would not be struck down as violating a woman’s Constitutional right.
Bottom line: any right granted in the Constitution or Bill of Rights is huge. So if the right to own a firearm is one of them, it becomes next to impossible to pass a law that might interfere with that right.
From here on is my speculation; at least partly.
For quite a while now there has been a growing sentiment here in the US of A that the easy access to firearms in our society might not be such a good idea. Mindful of these awkward observations about societal risks of guns, the National Rifle Association, formerly a fairly small body focused on hunters and sports-shooting, embarked on a national campaign to head off at the pass the probability that we, as a civilized society with a strong sense of self-preservation, might enact laws to limit the easy access to advanced weaponry which allowed nut cases to kill large numbers of people with relative ease.
To prevent this eventuality, the NRA needed to beat the drums of fear. We are a nation containing people prone to believe conspiracy theories. Combine that with an inability or unwillingness to apply critical thinking skills, a willingness to cynically manipulate people based on their fears, and we have a perfect opportunity for the NRA to ensure their future existence.
All they had to do was start a grass-roots movement feeding on the mistrust of central authority. And, it turns out they were up to the task. They fed the paranoia of a relatively small group of people that the US government needed a check, and furthermore that individual gun owners were the right people to provide that check. Eventually, enough people bought this nonsense that the NRA became arguably the most powerful lobby in the country, with the oft-quoted “From my cold, dead hands” as their rallying cry.
So where does that leave us?
Probably the only argument that is defensible for owning assault rifles or hand guns is this one: “It is my right to, based on the Second Amendment.” And that was made possible by Scalia’s (bare) majority decision in 2008 in Heller v The District of Columbia. I believe as a result of this extraordinary decision by an activist Supreme Court that we are confronted by the carnage in our society. Understand that this is unique. No other developed country has anywhere near the level of random gun violence we see in the US. Even third-world countries where gun violence approaches ours (adjusted for population size), it is almost always directed at and among narco-trafficking (Columbia comes to mind). It’s one cartel killing members of another. Here, a lone nut job walks into a movie theatre with the intent to make a name for himself (almost always it’s a “he”) and shoots people at random.
How do we stop this?
If enough people (and it seems like we are approaching this critical mass) ignore the drum beat of the NRA and the Bubbas of the country, we can pass sensible, reasonable gun control laws. We can enforce laws that already exist but that have been gutted of funding by spineless politicians afraid of the NRA. We can ban private ownership of assault rifles or hand guns that advertise “fingerprint-resistant technology.” We can use existing technologies that allow better tracking of specific weapons. We can ban from private ownership weapons that have no function other than killing another human (hollow-point and armor-piercing bullets are obvious first targets). We can enforce universal background checks, waiting periods and safety training. And the list goes on.
I am not advocating banning all guns from private ownership. While I think I have successfully argued that doing so would cut down on violence in general and violent crime specifically, that is not my intent here. Just some sensible limits placed on guns and gun ownership. And the irony is that Scalia’s ruling in 2008 specifically allows for these limits to be enacted.
No one seems to get that part, though.
The right to bear arms (part 2)
Based on how often I hear about a person’s Second Amendment right to own a gun, I had always assumed that the issue of interpretation was settled way back when. Turns out that the truth is otherwise.
I finished a book a few weeks back about the history of the Second Amendment, and got several surprises. Probably the most significant of those was that, for the first 230-odd years of the existence of the Bill of Rights, the Second Amendment was not interpreted to give people the Constitutional right to own a gun. The conventional wisdom (reinforced by multiple Supreme Court decisions and more than two centuries of case law) was that the Second Amendment was written as a way to create a check against an overly-strong central government. The manifestation of that intent today is the National Guard. Obviously circumstances have changed, and the National Guard looks about as much like a farmer-militia as the Bubbas running around in camo gear in the woods of Idaho look like a real militia.
Nothing in that background fits the scenario we see today. We have a standing army; we have National Guard divisions in every state, and the state of technology has advanced so far that it is unlikely that any true “militia” would be able to survive a pitched battle with a well-equipped army of even a small third-world country, let alone the mightiest armed force the world has ever seen, the combined United States Army, Navy, Marine Corps and Air Force.
So does the US Constitution guarantee the right for every person to own a firearm? It appears that it has been interpreted to do exactly that, and fairly recently too. Most people I speak with about this are surprised that the decision that enshrined this right was made in 2008, and none other than Antonin Scalia wrote the majority decision. The case was The District of Columbia vs Heller. Prior to this case, virtually every state had on the books a law that protected gun ownership. So why bother to add the District of Columbia? Couldn’t DC form its own law as a city that accomplished the same? Yes, of course it COULD, but in fact it hadn’t. Specifically, DC had enacted laws to limit gun ownership, as a law enforcement tool to cut down on violent crime. The District had fairly strict laws governing gun ownership.
However (and this is a big one), if it could be interpreted that gun ownership is a constitutional right, at least in federal enclaves, then it becomes a very different story. A constitutional right, once granted (or in this case, recognized), carries considerable weight. Then, any law…ANY law…that is proposed is considered against that precedent, and great care is taken to ensure the proposed law or regulation in no way violates Constitutional Law. It then becomes extraordinarily difficult to pass any kind of significant gun-limiting legislation at the city, county, state and federal level. Look at the current fight over abortion. The right to obtain an abortion is obviously not covered anywhere in the Constitution, but the Supreme Court determined that it was covered under the right to privacy. Interestingly, the right to privacy is itself not mentioned specifically in either the Constitution or the Amendments, but that’s because legal scholars (and the Supreme Court itself) have long held that several existing amendments in the Bill of Rights, as well as the text of the Constitution itself, imply that right. The Amendment against unreasonable search and seizure (the Fourth Amendment) is used as the foundation for Miranda laws; if there were no implied right to privacy then the Fourth Amendment would become meaningless. At any rate, when the right to abortion became recognized as a Constitutional right, it became extraordinarily difficult for any state, county or municipality to pass a law limiting access to abortions that would not be struck down as violating a woman’s Constitutional right.
Bottom line: any right granted in the Constitution or Bill of Rights is huge. So if the right to own a firearm is one of them, it becomes next to impossible to pass a law that might interfere with that right.
From here on is my speculation; at least partly.
For quite a while now there has been a growing sentiment here in the US of A that the easy access to firearms in our society might not be such a good idea. Mindful of these awkward observations about societal risks of guns, the National Rifle Association, formerly a fairly small body focused on hunters and sports-shooting, embarked on a national campaign to head off at the pass the probability that we, as a civilized society with a strong sense of self-preservation, might enact laws to limit the easy access to advanced weaponry which allowed nut cases to kill large numbers of people with relative ease.
To prevent this eventuality, the NRA needed to beat the drums of fear. We are a nation containing people prone to believe conspiracy theories. Combine that with an inability or unwillingness to apply critical thinking skills, a willingness to cynically manipulate people based on their fears, and we have a perfect opportunity for the NRA to ensure their future existence.
All they had to do was start a grass-roots movement feeding on the mistrust of central authority. And, it turns out they were up to the task. They fed the paranoia of a relatively small group of people that the US government needed a check, and furthermore that individual gun owners were the right people to provide that check. Eventually, enough people bought this nonsense that the NRA became arguably the most powerful lobby in the country, with the oft-quoted “From my cold, dead hands” as their rallying cry.
So where does that leave us?
Probably the only argument that is defensible for owning assault rifles or hand guns is this one: “It is my right to, based on the Second Amendment.” And that was made possible by Scalia’s (bare) majority decision in 2008 in Heller v The District of Columbia. I believe as a result of this extraordinary decision by an activist Supreme Court that we are confronted by the carnage in our society. Understand that this is unique. No other developed country has anywhere near the level of random gun violence we see in the US. Even third-world countries where gun violence approaches ours (adjusted for population size), it is almost always directed at and among narco-trafficking (Columbia comes to mind). It’s one cartel killing members of another. Here, a lone nut job walks into a movie theatre with the intent to make a name for himself (almost always it’s a “he”) and shoots people at random.
How do we stop this?
If enough people (and it seems like we are approaching this critical mass) ignore the drum beat of the NRA and the Bubbas of the country, we can pass sensible, reasonable gun control laws. We can enforce laws that already exist but that have been gutted of funding by spineless politicians afraid of the NRA. We can ban private ownership of assault rifles or hand guns that advertise “fingerprint-resistant technology.” We can use existing technologies that allow better tracking of specific weapons. We can ban from private ownership weapons that have no function other than killing another human (hollow-point and armor-piercing bullets are obvious first targets). We can enforce universal background checks, waiting periods and safety training. And the list goes on.
I am not advocating banning all guns from private ownership. While I think I have successfully argued that doing so would cut down on violence in general and violent crime specifically, that is not my intent here. Just some sensible limits placed on guns and gun ownership. And the irony is that Scalia’s ruling in 2008 specifically allows for these limits to be enacted.
No one seems to get that part, though.
About BigBill
Stats: Married male boomer. Hobbies: Hiking, woodworking, reading, philosophy, good conversation.