Assault on the Constitution

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Feb 26, 2013

Gun control advocates need to respect what the Second Amendment actually says

“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.”

That is what the Second Amendment to the U.S. Constitution says.

Surprised? You might be. You might even be shocked if you have listened to opponents and advocates of stricter gun control recently.

Both the foes of gun control, and those advocating new restrictions, including President Barack Obama, begin every public statement by invoking the Second Amendment and vowing to defend or promising not to trample upon the rights it supposedly guarantees to Americans. The president did that again during his State of the Union address.

Absent from these invocations is any discussion of a “militia,” or just how a citizen’s right to keep and “bear arms” (a military term of art from the 18th century) while serving in one would be infringed by a ban on assault weapons or screening prior to the sale of firearms or an outright ban on handguns in any municipality that chose to enact one — as many have dating back when the Second Amendment was ratified on Dec. 15, 1791.

Some 217 years later, the U.S. Supreme Court decided Heller vs. District of Columbia in a bitter 5-4 battle. The majority, led by Justice Antonin Scalia, decided that the “Militia” language you just read (and, please, read it again) was just the “preamble” and that the original and true intent of the Second Amendment was to guarantee civilians the right to own and use weapons to defend “hearth and home.”

That’s not what the amendment says. Before and during the 1790 debate over the Bill of Rights and throughout the centuries that followed, local, state and federal laws have restricted firearms in literally thousands of formulations, each shaped by a legislature’s determination of the restriction that made sense for that community. Urban governments typically restricted handguns while restrictions involving rifles proliferated in rural areas.

The majority in the Heller case profess to be “strict constructionists,” or “originalists,” interpreting laws according to the plain meaning of the words found in a law. That means the words’ literal meaning at the time the law was enacted. Originalists say they cannot interpret old laws to accommodate what they now think is best for our country.

Judge Robert Bork, who died recently, was viewed as the greatest originalist on the federal bench. President Ronald Reagan said that when he nominated Bork for a seat on the U.S. Supreme Court in 1987. When questioned at his confirmation hearings about the Second Amendment and whether it involved the private use of firearms, Bork dismissively answered that it just referred to militias. In 1991, Bork reiterated his position, saying “The NRA thinks that it protects their right to have Teflon-coated bullets. But that’s not the original understanding.”

The words of the Second Amendment are clear. The purpose was to maintain the vitality of state militias, whose functions have largely been subsumed within those of state-based National Guard brigades. The biggest battle fought during the Constitutional Convention of 1787 was between proponents of strong sovereign states and those favoring centralized federal power.

Our Constitution is a brilliant compromise, with the Bill of Rights the quid pro quo demanded by a majority of the signers. The state militias were a safeguard against a “standing army” maintained by the central government, which our founders considered the greatest threat to state sovereignty and individual liberty.

How could the court’s majority in Heller ignore and interpret the clear words of the Second Amendment in such a revisionist manner?

The process is sometimes referred to as “Scalia tennis: 5 to 4, I win.” The court’s conservatives are not true “strict constructionists.” They, and some of its liberals, are really chameleons, who change their shape and judicial philosophy to achieve the result they want. In Heller, the five-man majority prevailed over the dissenters led by retired Justice John Paul Stevens and joined by Justices Ruth Bader Ginsberg, Stephen Breyer and the now-retired David Souter, the last true conservative to serve.

Supreme Court decisions like Heller, built upon false foundations, don’t last forever. One tool that advocates of sensible gun control must employ is to mount legal challenges to the Heller precedent. If the Supreme Court’s shameful “separate but equal” doctrine announced in its 8-1 Plessy v. Ferguson decision in 1896 had not been resoundingly reversed in 1954 by the 9-0 ruling in Brown v. Board of Education, our nation might well have sunk under the weight of what was called the “American Dilemma” — its disease of racial segregation.

Why does this president, who rails so regularly against the Supreme Court’s Citizen United decision — another 5-4 ruling about the First Amendment — ignore Heller and the real meaning of the Second Amendment?

Former constitutional law professor Barack Obama knows this stuff. So, what’s up?

He is doing what he usually does, going into battle with at least one hand tied behind his back, as he did by taking the “public option” off the table before negotiating Obamacare with the Republicans in Congress. Perhaps Obama wants to appear reasonable. But ignoring facts and the tools you possess serves no legitimate interest in this important debate.

If and when the flimsy Heller precedent is reversed by a wiser and more honest majority — say, tomorrow — that would not end the debate about gun control. There is a respectable argument that Americans have the right to protect themselves with firearms without reference to a phony interpretation of the Constitution.

This asserted right is similar to many personal freedoms that are not specifically mentioned in the Constitution. Our right of privacy comes to mind. And there has always been a rough consensus in America that certain firearms are appropriate for certain purposes in specific settings. Laws enacted by elected legislatures at every level of government have reflected that consensus while adapting to new technologies like rapid fire rifles with 30-bullet clips — not your great-great-grandmothers’ muskets, are they?

As we go forward in this debate, the advocates of gun control should stop pretending that the Second Amendment says and means something that it doesn’t.



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