What's on 2nd?
A look at the history of the 2nd Amendment and the Supreme Court in the aftermath of the Pulse Night Club tragedy
“Blow a Kiss, Fire a Gun”
On June 12, 2016 an all too familiar tragedy struck this great nation at Pulse Night Club in Orlando. What was to be a party celebrating love and the LGBTQ community, turned into the deadliest lone gunman mass shooting in American History. What soon followed was an all too familiar soundtrack with liberals demanding the passage of stricter gun control legislation, and their opponents responding with a repeated chorus of “2nd Amendment.” Of course both sides united to send their “thoughts and prayers” across the internet to the victims and their families. These words once conveyed sympathy and empathy, but now ring hollow with apathy because though innocent people died, we all know that nothing will change.
Sadly this familiar refrain has contributed to the fruitless gridlock that continues to bind this nation’s hands with respect to limiting access to weapons as a means to curb gun violence across the country. In fact in the aftermath of Orlando, despite a Hold the Floor filibuster in the Senate, the Senate voted down all four proposed gun control bills, including the “no fly, no buy” bill.
The question then becomes, what is preventing gun control despite polls showing that the overwhelming majority of Americans want tighter gun laws. The easy answer is the NRA and their money. But the deeper answer is the 2nd Amendment of the United States which provides the basis upon which the NRA hangs its hat.
To that end I initially intended this piece to be an impassioned plea in favor of gun control, railing on the NRA and all those that are in its deep pockets. But then I realized, such an article is both commonplace and ineffective. To expect action from Congress is pure folly. It’s a truth I realized after Sandy Hook. If the slaughter and mass execution of innocent children wasn’t enough to stir congress into action, nothing will. But there is another road to gun control. That road leads through the Supreme Court.
Therefore, the discussion we need to have to solve such an emotional issue is not one from the heart, but rather one from the head.
Unfortunately we live in a sound bite society where attention spans are only as long as the viral videos that seem to consume our attention on a daily basis. The constant focus of who won the internet today seems to have replaced the need for a nuanced dialogue amongst an informed electorate. When it comes to the Supreme Court, the 2nd Amendment and the upcoming election, however, there is no sexy sound bite or viral video to champion the cause.
This piece is my amateur attempt to briefly look at the explicit language and subsequent legal implications of the 2nd Amendment in the context of the gun debate that plagues our society today to try to answer the question that Abbot and Costello posed many years ago, “What’s on 2nd?”
“More than Words”
The 2nd Amendment is often referred to as the constitutional right to bear arms. This is a simplistic and potentially inaccurate view of what the explicit words actually say. But before we go there, let’s all remember one thing, the United States of America has its independence today because of guns. Because the armed citizenry formed a people’s militia that became the Continental Army to fight the British. So even though I’m a liberal who believes in strict gun control legislation, I do not understate the significance that the right to bear arms in our history. And it is for this very reason that the founding fathers memorialized this right in the sacred document that we consider a key thread in the fabric of our freedom, the Constitution of the United States of America.
Having said that, let’s take a look at what the actual 2nd Amendment says, shall we?
“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.”
Right off the bat, you’ll notice the Amendment begins by talking about a well regulated militia being necessary to the security of a free State. This is the part that most opponents of gun control omit in their reading of the 2nd Amendment. What this is saying is that, because we, as a nation, need a well regulated militia to ensure / protect our freedom, the people should have the right to keep and bear arms. The US armed forces trace their roots to the Continental Army of 1775 for the Revolutionary War. Back then the citizenry were the enforcers and protectors of the freedom that was bought with blood from the British.The Continental Armies would then disband, and then reform again when needed, because of the people’s distrust of large government organized military, and state militias became the norm. It is also important to remember that back then, the prevalent weapon of choice was a musket so lone wolf mass shootings were not really a concern as it took time to load and fire.
That is clearly not the case today. Today, the United States of America has, by far and away, the largest and greatest military in the world to fulfil that duty. Additionally each village, township, city, and state has its own police force. Not to mention we have the national guard, the FBI, the CIA, the NSA, and so on and so forth. So one question to keep in mind is, when the 2nd Amendment is talking about the well regulated militia, are they now talking about the US Armed forces? And if so, is it the military’s right to bear arms that the Constitution now protects, or is it still the right of an individual non-militia citizen that they’re speaking of?
It’s also worth noting that the 2nd Amendment’s right to bear arms is derived from the English Bill of Rights of 1689 which states that “subjects who are Protestants may bear arms for their defense as permitted by law.”The key words perhaps being “as permitted by law”
Over the past hundred plus years, there have been a few key Supreme Court decisions on the 2nd Amendment, which are equally used by both sides of this debate to champion their cause. Let’s take a quick look at a few of these.
United States v. Cruikshank, 92 U.S. 542 (1875)
“The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.”
Commentary: This ruling was done at a time when States rights vs. Federal rights was a hot topic, with the decision that the right to bear arms was essentially an inherent right that was neither granted or dependent upon the Constitution.
United States v. Miller, 307 U.S. 174 (1939)
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” 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. Certainly 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.”
Commentary: Miller is used by both sides of the gun debate as a ruling that supports their cause. But to truly understand Miller, it’s first important to understand the context of Miller, which eerily mirrors our modern predicament. On February 14, 1929, in Chicago 7 men were gunned down in the Lincoln Park area of Chicago at the garage on 2122 N. Clark Street. That event came to be known as the St. Valentine’s Day Massacre. That massacre led to legislation called the National Firearms Act of 1934, which imposed a statutory excise tax on the manufacture and transfer of certain firearms and mandated the registration of those firearms. The Miller decision found that sawed off shotguns, specifically unregistered ones, were not protected under the 2ndAmendment because it wasn’t proven that such a weapon was necessary to the preservation of a well regulated militia, especially as it wasn’t a military-type weapon used by a militia, and wasn’t used by any US military organization. Here’s where things get tricky. Gun control advocates will say that the Miller decision allowed the Supreme Court to regulate guns by type of weapon, and upheld the needs for guns to be registered as well. Opponents will say that Miller simply said that if the weapon wasn’t a military grade weapon, it wasn’t protected under the 2nd Amendment but that military grade weapons were protected for use in militia type organizations, and that since the citizenry are what comprise militias they are protected under the 2nd Amendment.
District of Columbia v. Heller, 554 U.S. 570 (2008),
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Commentary: This was a 5-4 decision that explicitly stated that the individual’s right to bear arms was not limited to whether or not they were connected with a militia. For opponents of gun control this is the definitive decision and interpretation of the 2ndAmendment. For gun control advocates, this is a very broad interpretation narrowly passed by a conservative court which exemplifies why in the upcoming election is so important as a single justice vote could determine how the 2nd Amendment is defined.
McDonald v. Chicago, 561 U.S. 742 (2010),
“the Supreme Court held that the second amendment right recognized in Heller is fully applicable to the states through the due process clause of the fourteenth amendment.”
Commentary: One again this was a 5-4 decision from a 5-4 conservative court. This ruling extended the Heller ruling to apply to the States as well, essentially saying that the 2nd Amendment was immune from intervention from the States. The implications for the gun debate mirrors that of Heller.
Caetano v. Massachusetts 577 U.S. ___(2016)
“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that “the Second Amendment right is fully applicable to the States”.
Commentary: This decision was unanimous but the effect of the ruling was to vacate the conviction of a woman who carried a stun gun to scare off an abusive boyfriend, because Mass. does not allow stun guns. The rhetoric again favors of gun advocates, by expanding the application of the 2nd Amendment to weapons that did not exist or could not even have been imagined at the time the 2nd Amendment, such as a stun gun. However, the case and the application of the ruling was not really related to a 2ndAmendment gun rights issue. It appears to have been an attempt to use the 2nd Amendment as a cover to protect the self defense rights of an individual who used a stun gun to scare off the abusive boyfriend. Justice Alito wrote, “[t]he reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense”
“Guns N’ Roses”
What’s the point of all this? What’s the “so, what?” of it all? For nearly 18 months the position of US Surgeon General sat vacant because Dr. Vivek Murthy called gun violence a public health crisis. In response the NRA held up his confirmation vote. Today, the CDC is not allowed to use its budget to even study gun violence as a public health crisis, because the NRA is afraid of what the answer might even be. This is such an appalling state of affairs that in the wake of the Orlando tragedy the AMA added its voice to Dr. Murthy’s, issuing a resolution to lobby congress to lift the restrictions on the CDC so the medical community could scientifically research the gun issue. As it stands today, the ATF can’t even have an automated database of gun sales, and background checks continue to be up for debate.
After Sandy Hook, what became clear is if we wait for congress to address our gun epidemic, we’re going to be waiting a long time. But there’s another route, the Supreme Court. A conservative Court delivered the seminal rulings on the interpretation of the 2ndAmendment by a 5-4 vote. A liberal Court, in theory, would have reached the opposite ruling by the same margin. But much more than that, as long as this nation holds the 2nd Amendment to be sacred, the NRA will have a foundation to hang their hat on. The Supreme Court is the vehicle through which that sanctity can be demystified once and for all, placing the emphasis on the well regulated militia rather than on the right to bear arms. Gun proponents argue that we can’t trust our government and therefore the people need to be armed in case the US Gov’t turns against its citizens. In the late 1700s that meant a battle of muskets vs. muskets. Today the US Gov’t has access to drones, cyber warfare and an arsenal unlike any other, so this argument seems to hold less water.
If nothing changes, we can reasonably predict more gun violence, followed by more flowers at funerals. To expect otherwise is the definition of insanity. The NRA will not change its course. The politicians it owns will not change their course. What can be changed is the Supreme Court, which in turn can change how the 2nd Amendment is interpreted. For that reason the upcoming election is of critical importance. Because for once, our vote matters more than that of Congress.