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.

Advertisements