Some Perspective on the Second Amendment

Image courtesy of Stockvault.

Yesterday was the five-year anniversary of the Sandy Hook Elementary school shooting. With all that’s happened this year regarding gun violence, I think it’s appropriate to continue the conversation about it until society finds solutions to the problems we face. Of all the examples of violence requiring action, I think Sandy Hook stands out as the most necessary. If we cannot protect young children in schools, then we truly are failing our future generations.

Naturally, any discussion regarding this in the States has to involve the Second Amendment. Unlike other parts of the world, the U.S. has this Amendment which has been interpreted to be a barrier to certain forms of gun control. I’ll get to that interpretation in a moment, but right now I think it’s important to stress that this interpretation not only exists, it also has the full force of law. Too many gun control advocates try to wish this fact away, or pretend that it isn’t as important as it is, and this contributes to the impotence of the American public to protect itself from gun violence.

Full disclosure, I live in a house with two members of the National Rifle Association (NRA). I’m not a member, and I disagree that gun ownership must inherently be a universal right. The Second Amendment is not a suicide pact, and it cannot be used to hold the general public hostage. If gun violence like that at Sandy Hook or Las Vegas or anywhere else persists, one can expect disastrous consequences from a public that will need to defend itself.

A brief history of the Second Amendment.
Here is where the narrative to frame support or erosion of gun control begins. Some people argue that the Second Amendment only exists in relation to militia membership and maintenance. In fact, in U.S. v. Miller, the U.S. Supreme Court (SCOTUS) effectively said that. That court passed on some sort of constitutional right to gun ownership, and simply said that the U.S. could stop people from trafficking in weapons because Congress could regulate “the militia” (whatever that means), and the Second Amendment mentions “the militia.” This happened back in 1939.

Fast forward to 2008, and in District of Columbia v.
Heller
, SCOTUS decided that there was a right to gun ownership. This case is important for a couple of reasons. First, it outlines the actual history of the Second Amendment better than most other scholarship. Second, it represents a vast expansion of the Second Amendment that only got worse with 2010’s McDonald v. Chicago (holding that the gun ownership right in Heller also applied to the states).

For people that don’t want to read long, boring legal cases, the short version is that both camps are right about the Second Amendment. After it got drafted, people did different things with it. Some states and territories treated it as a right to gun ownership, especially when slavery was involved. Abolitionists wanted guns to shoot slavers who wandered onto their property. Slavers wanted guns to protect themselves against the fear of a slave uprising. And both sides kept trying to disarm the other because they weren’t part of a militia.

There are other concerns brought up in Heller as well. People use guns to catch food, and they historically have been used to protect people in the absence of police. Even as the country has become more settled, those rights and practices haven’t fully gone away. These people are not breaking any laws, either, so gun proponents can bring up the point that they shouldn’t be punished for the bad acts of others. Against that, there is the idea that militia regulation in Miller has curtailed gun ownership in the past, and some violence begs for that intervention.

In this way, the only thing that’s really changed over the years about the Second Amendment is that it’s now a fundamental constitutional right for people to own “arms.” I have to put that in quotes, because SCOTUS has been pretty vague about defining what “arms” are. For example, if “arms” included nuclear weapons, it would mean that I could go purchase a nuclear weapon, and Congress couldn’t do a thing about it. I’m not sure if that’s a good thing or not.

At any rate, the debate is still ongoing. Miller created the notion that militia regulation gives Congress the right to restrict gun ownership. Heller and McDonald are controlling, and they recognize the informal right that people have exercised over the course of this nation’s history. The problem, then, is that this right is now running into issues as the nation becomes increasingly different.

Image courtesy of Stockvault.

What this fundamental right to gun ownership means.
Do you support gay couples getting married? Do you think the government shouldn’t jail people for speech? Do you think people should have control over their own bodies? If you answered yes to any of these, you’re going to have a problem arguing against rights to gun ownership. This is because the same thing that created all these other rights is relied upon for gun ownership.

If this was a law school class, here is where there would be a long and tiresome discussion on original intent versus contemporary interpretation doctrines. Interestingly, for all the original intent Scalia, Alito, Thomas, and others have claimed to champion, Heller really is them creating new doctrine. Original intent technically went out the window with Miller.

The point stands that in order to fix this wagon, the Second Amendment will need to get changed. Regardless of who wants what, the Second Amendment is standing in the way of public safety AND personal liberty. There is nothing stopping SCOTUS from deciding that one day Congress can regulate guns again because of “militias,” or that they can expand bearing arms to having chemical weapons.

Getting a new Amendment would also be practically impossible, too.
The NRA effectively has a stranglehold on both parties. Congress would have to pass one to get ratified, and there’s no indication state governments would be able to survive the onslaught of NRA members calling in support of wanton gun ownership. For people genuinely interested in curbing gun violence, you’re up against powerful lobbies and the Constitution itself.

The solution, if it isn’t obvious already, is that you have to be just as vocal as people who recklessly support gun ownership.
If seeing dead children in Connecticut isn’t worth a phone call, then I don’t know what is. It also requires being more knowledgeable about firearms than gun enthusiasts. Third, it requires the ability to compromise.

Not all gun control is equal. For example, the Sutherland Springs shooting could not and was not prevented by background checks, but a stranger with a firearm was able to stop the attack. Before enthusiasts get too happy, recall that in the Las Vegas shooting, many people who had guns couldn’t use them to stop the shooter. People who conduct mass shootings frequently get around the defenses of their intended victims.

That said, there are some common sense regulations that people could get behind. Bump stocks should get banned, and possession of illegally modified firearms should carry stiffer penalties. Getting rid of the Protection of Lawful Commerce in Arms Act should also be a necessary thing.

It will take active participation and investigation for people to change how guns are treated in this country. Sandy Hook should never have happened. People having access to weapons that can discharge many rounds in a short period of time has resulted in too many deaths.

15 thoughts on “Some Perspective on the Second Amendment

  1. Excellent and educational post on a subject that is far too hot to handle … yet you did a superb job. Would that we could find a solution but alas, I hold no such hopes.

    Like

    • Hope really can’t have anything to do with this, Nan. Either the issue is important enough to warrant active citizenship, or the deaths of those kids is meaningless. I’m not suggesting everyone goes on a crusade here, but I am saying that gun control needs as much cultivation as gun enthusiasts have.

      Right now, gun manufacturers can employ felons to make guns and nothing bad can happen to them. Even this can’t get opposed because people just shrug and refuse to type an email to their representatives.

      Liked by 1 person

      • Re: that “email to their representatives” … I know this is the action that’s strongly promoted, but quite frankly, I sometimes wonder if it makes a difference … especially with the current administration.

        It seems no matter how much disapproval is exhibited (via social media, news sources, protests, polls, phone calls, etc.), there has been no viable indication anything is going to change. Of course, this encompasses many other issues besides gun control.

        Like

      • Actually emailing, calling, and mailing materials to representatives is more influential than social media, protests, and polls. And this involves talking to Congress, not the White House.

        The energy is there to support gun control, I think, but it’s too often wasted in less productive measures. The results the NRA gets speak for themselves. If emailing representatives carried less weight, nobody would be having this discussion.

        Like

    • That’s very reasonable. Even if it’s not doable, I think that there should be a database on people who buy more than one weapon for their homes. Automatic long-arm and weapons that can be modified to replicate them need to be scrutinized carefully. I can’t think of a mass shooting in recent memory that didn’t involve one.

      Like

  2. It seems to me, looking at this from the outside, that the major problem is the lack of safety the US population feels. If this is the case, it is all in the attitudes and in the reasons for them. Perhaps, instead of trying to impose gun controll, you should try to advocate for better training for the police and social security network to stop the big economic difference between the super rich and super poor. Such economic gaps and lack of social movement other than criminal always creates violence, be it with guns or sticks.

    I hear, that the average US cop gets a training period of half a year, while for example here in Finland our police has to spend three years in training in the academy. I also hear a lot of stories of abuse by the US police force and I find the fact, that they often have to operate alone (one man one car, who gets into situations) simply appalling. In many cases when the US cop has had to use deadly force, they have emptiet their chamber in the assumed criminal. This reveals a serious lack of professionalism and exeptionally poor gun training. There seems to also exist a built in racism within the US judical system, wich may also contribute to the problem of people – regardless of their assumed race – generally feeling so affraid they think they need a gun. As a sort of safety handle, or prayer, if you can see the parallel. In reality it is more likely to get you into trouble and even at best it is likely not to help you much when the situation comes.

    The main problem and paradox may be, that the US population is so affraid of guns, that the majority (or at least the critical mass) wants to own a gun simply to feel safe. Here in Europe in general people trust the police to keep the peace, so not everyone wants to own a gun. A gun is especially dangerous in the hands of the untrained and the criminal, but every illegal weapon in the hands of a criminal was once legal. There are no secret factories that produce illegal guns, they are mostly stolen from untrained people, who have no notion how to handle, or keep their legal guns safe.

    To me it seems also, that the more gun controll is advocated, the more the population is reminded, about the fact, that they do not feel safe and in turn this leads to them buying even more guns. Guns, many of wich are going to end up in the hands of criminals, and the more there are, the more easily the criminal can get his hands on one. The more there are guns, the lower the treshold to use one is. Most sadly the more normalized the guns are and the less gun controll there is, the more likely you are to get shot by a toddler, or in some other accident of irresponsible handling of one.

    We have more guns per capita here in Finland (even though we have strict laws about gun ownership and higher level of gun control), than the US. In addition, Finns have a high tendency to kill each other. However, the difference is, that the average Finnish killing is a blind drunken middle aged man killing his best friend over a cause he can not remember when he wakes up, and the killing is done by knife, axe and fist, not whith a gun. The knife is the preferred weapon, as it is always at hand, while the guns are kept in locked gun lockers. One reason may also be, that by far most of us Finnish men have military training and know how to handle guns safely. Our problem is not the abundance of guns, but the way we drink our booze, but that is a nother story.

    It is impossible to get a gun permit in Finland for self protection. Most guns here are for hunting, but there are those who have guns as collector items and for target practice just for fun. A person who expresses that they need a gun to feel safe, is seen as mentally unstable. In this cultural light the entire US nation seems somewhat certifiable to Finns.

    Liked by 1 person

    • I really enjoyed reading your comment, rautakyy. There was much common sense in your words. I do wish Americans would look at gun ownership from a different perspective, but there are simply too many who have the misguided thinking that a gun is their “Incredible Hulk.”

      While I do love much about America, I often look longingly at other countries where the people seem to have better heads on their shoulders related to several social issues.

      Like

      • Thanks Nan! Well, like I tried to point out, we here in Finland have our own problems, it just happens guns are not one of our major problems even though we have a lot of them (both problems and guns). I credit guns not being a real problem here, foremost on our police force for being effective enough, so that people do not feel so affraid, that each and everyone (or rather hardly anyone) would feel they need a gun.

        Since the gun ownership issue seems to be such a hot potato, that there seems to be very little sensible discussion about it in the US, perhaps an alternative approach of getting better education for the cops might increase the general sense of security, thus making a gun less of a “necessity” and ultimately pulling down the chances of criminals getting their hands on one. The big looming issue behind even the gun question is of course the discord, of no possibilities for social movement (other than down) while the cultural value base demands and expects one to move upwards to show their worth.

        After the WWII we had a LOT of illegal guns going about here in Finland. There was even a secret military operation to hide military issue guns for private citizens, who could be raised as a new army in case of sudden Soviet invasion. Many of those guns (rifles, machineguns, pistols and submachine guns) are still missing and unaccounted for, so in practice they are illegal. So, it is not so much the guns that are the problem, as it is the general attitude towards them and the level of education on how to handle them, the level of trust in our police to keep the peace irrespective of a lot of guns and indeed, the fact, that since WWII and already before that, since our civil war hundred years ago, Finland has grown evermore egalitarian. I do not claim, this has been an easy path and we had a lot of political violence in the 1930’ties and Finland even joined the Nazi Germany in operation Barbarossa.Today, the nation provides the social security network, for any dropouts, unemployed and such. The strong trade unions and a series of socialist governments have provided the nation with equal opportunity. We have medical care practically for free and one can study all the way through the university for free. For example, my parents were poor working class people, I could not have gone to university on their support, if it cost something, but the nation – we the taxpayers – paid for my education and for the education of any willing and able. We have criminals too, but our prison system is directed to be a correctional facility, not a revenge for doing wrong, or some sort of storage for the wrongdoers. The sentences are fairly short, and there is no capital punishment. The system does not rehabilitate every criminal, but a lot of people who end up in prison do get their lives back afterwards and the system is making itself better by the hour, since the goal is clear.

        Like

      • This: So, it is not so much the guns that are the problem, as it is the general attitude towards them and the level of education on how to handle them is also the case in the U.S.

        From your comments, it would appear that no matter where we live, we all have our issues to deal with. But I guess it’s because countries are made up of humans … and we still have a lot to learn about ourselves.

        Hope this coming year brings much joy and happiness to you and yours.

        Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.