Posts © 2011-2012 by Gerald G. Day







Wednesday, February 21, 2018


February 20, 2018 

     Once again a mass shooting has occurred, once again at a school, and once again, probably, nothing will be done to prevent another such tragedy.  Thoughts and prayers too often are cover for inaction, and asserting that better mental health screening will suffice is a delusion or an evasion.  The connection between the availability of guns and gun deaths is as clear as the connection between human activity and climate change, and is ignored by so-called conservatives in office for the same pair of reasons: libertarian aversion to regulation, and political pressure and money which demand that it continue to be ignored.

     I’ve begun to wonder whether public opinion counts for anything in today’s politics.  Polls show that people take gun control far more seriously than Congress or the Administration, with no effect.  Earlier mass shootings, including at schools, has not led to control of the availability of guns.  A popular uprising, something akin to MeToo, will be required.  Perhaps the teenagers, in Parkland and elsewhere, can succeed where the chronological adults have failed.

     There are some indications of change; a Florida political donor has vowed not to write another check to Governor Scott and other Republicans "unless they all support a ban on assault weapons.”  The Sheriff of Broward County, where Parkland is located, warned officials that they will not be re-elected unless they support stronger gun laws.  As a forecast, that may be too optimistic, but it’s another good sign. 

     The media usually have not pressed the issue.  One example is the CBS nightly news broadcast on February 14, which devoted a significant part of its time to the Parkland shooting, but did not mention the easy availability of guns as a cause. Change may be coming there as well; newspaper articles and columns have condemned inaction and hypocrisy in a way not seen after earlier shootings.

     Those who tout American exceptionalism probably don’t have in mind our relative standing in various categories relating to health and safety, including the prevalence and impact of guns.   We have more guns in private hands, and have more gun deaths than any other developed country, and more mass shootings.  The ratio of guns to gun deaths holds true among other developed countries.  This is not because we have more crime; per capita, our record is respectable; guns create an aberration. The argument that control doesn’t work is belied by experience: countries which have instituted more control have seen gun deaths drop; here, states with tighter gun-control laws have fewer gun deaths. [20]

     Bret Stephens, in a column in The New York Times, has proposed repealing the Second Amendment.  This, coming from a conservative, is significant. He summarized the argument as follows: "We need to repeal the Second Amendment because most gun-control legislation is ineffective when most Americans have a guaranteed constitutional right to purchase deadly weaponry in nearly unlimited quantities." 

     The Amendment long has been cited, legitimately or not, as the authority for unlimited ownership of firearms.  For example, there has been a gun-rights group known as The Second Amendment Foundation since 1974. The Amendment was used as an argument against the Brady Bill in 1993.  Days after the 1999 Columbine school shooting, Charlton Heston preached Second Amendment rights.  However, it was legitimized as a basis for individual gun possession only with the decision in Heller v. District of Columbia (2008),[21] which overturned United States v. Miller (1939). Miller had limited the Amendment to the support of militias, as the language seems to provide.  The Amendment had not been applied to restrict state laws until the Court extended Heller to the states in McDonald v. Chicago (2010).

     Justice Scalia’s opinion for the 5-4 majority in Heller is misguided, inept and internally inconsistent.  In the course of interpreting the Amendment, he rewrote it by expunging  the limiting clause, "A well regulated Militia, being necessary to the security of a free State;" by converting the phrase "keep and bear arms" — a militia reference — into "keep and carry arms;" and by reading into the text "the individual right to possess and carry weapons in case of confrontation."  The last was based on an English statute of 1689 which provided that "the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." By some mysterious process that became part of the Second Amendment, a process aided by cancelling the reference to militias.  Along the way, the statute lost its reference to religion, "as allowed by law" vanished, and having arms for defense became a right to carry weapons in case of confrontation. 

     The last is a broad hint to gun advocates that it is good policy to be armed, just in case.  Those taking the hint include airline passengers.  TSA reported finding 104 handguns (87 loaded) in carry-on bags between February 4 and 11.

     In dissent, Justice Breyer argued that "the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves."  The majority would have none of that: "The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon."  The right is absolute.

     Despite Heller’s sweeping rhetoric its holding is narrow, and would not justify mass gun possession, concealed carry, opposition to licensing, purchase from unlicensed sources, purchase by minors, possession of military-style rifles, or other examples of our irrational practice.  It merely held that "the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."  Possession in the home, for self-defense, of a loaded handgun, not burdened with a trigger-lock,  is protected; that’s it.  Little of the subsequent reliance on the Amendment and the decision can be based on the holding.  Instead, gun advocates take the decision as  blanket permission, relying on Scalia’s loose language and his strange interpretation of the Amendment.   

     As the Second Amendment clearly is the problem, what are the possible solutions?  The best would be for the Court to overturn Heller and McDonald and return to the holding in United States v. Miller (1939).  Justice Stevens, dissenting in Heller, described the former interpretation of the Amendment in this way: "The view of the Amendment we took in Miller — that it 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 — is both the most natural reading of the Amendment's text and the interpretation most faithful to the history of its adoption." 

     Given the makeup of the Court, reversal isn’t likely;  Justices Roberts, Thomas, Kennedy and Alito were in the majority in Heller, and Justice Gorsuch might be expected to join them in rejecting any such retreat.  The present Congress hardly is likely to propose repeal of  the Amendment, but perhaps the combination of a Democratic takeover and that popular push would make it possible.  The latter would be needed at the state level as well, in order to achieve ratification.

     A simpler and more direct approach, but also requiring a new Congress, would be to enact stricter gun laws.  One of the oddities of the Heller opinion is that, for all of its sweeping pro-gun comments, it contemplated some kinds of control.  The right to keep and bear arms, it said, "was not unlimited, just as the First Amendment's right of free speech was not . . . . Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. . . ."  More specifically, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

     It isn’t clear whether the Court would have allowed prohibition of certain types of weapons, as Scalia’s muddled opinion took opposing positions on whether the Amendment protects only weapons in existence when the Bill of Rights was adopted.  At one point, he seemed to reject that interpretation: "Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment."  No, he said, "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."  Later, he reversed course: "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of  ‘dangerous and unusual weapons.’ "  Perhaps prohibition of assault rifles, large magazines  and bump stocks therefore could pass muster; the opinion’s focus on the right to a handgun might help justify that.

     Another possibly unintended opening exists in the opinion’s reference to the people whose rights it sought to protect.  Whatever interpretation one might put on the Amendment, the Court said, "it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."  It doesn’t do that, of course, but the reference to responsibility, if taken as a limitation on possession, would open more doors to control, such as meaningful background checks and licensing.

The opinion can mean almost anything, given its illogic and ambiguity, so control advocates should be as aggressive in interpreting it as the gun nuts.

     Congress should enact those laws necessary to bring order out of chaos, and defy the Supreme Court to say nay.  We cannot simply recycle our thoughts and prayers forever.


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20.
https://www.vox.com/policy-and-politics/2017/10/2/16399418/us-gun- violence-statistics-maps-charts

21. 
My review of the opinion is in the posts of July 6, 2008 and December 19, 2015.



1 https://www.vox.com/policy-and-politics/2017/10/2/16399418/us-gun-violence-statistics- maps-charts
2  My review of the opinion is in the posts of July 6, 2008 and December 19, 2015.