The Supreme Court’s dangerous Second Amendment interpretation
If we are going to stop gun slaughter in America, we must begin to take on the Second Amendment squarely and honestly. Too many who support gun control seem to think that, for political reasons, we must first genuflect to the false narrative that there is a legitimate constitutional right to individual gun ownership. But until those who are trying to thread that needle while at the same time insisting that we must stop the daily carnage of gun violence plaguing our nation, the latter will never stop because we are treating symptoms and not the disease.
Guns were invented for one purpose and one purpose only — to kill. They have no other purpose in the hands of those who wield them. Unlike numerous other goods in commerce that serve a legitimate utilitarian purpose for which we are willing to accept an ancillary risk of harm and death — automobiles being a prime example — guns have no countervailing utilitarian benefit to civil society.
The Second Amendment was never a problem until the Supreme Court’s 2008 decision in Heller. Penned by Justice Scalia, Heller opened the Pandora’s box of individual gun rights. As Michael Waldman, president of the Brennan Center for Justice, documented in his book “The Second Amendment, A Biography,” the Supreme Court hatched a view of gun rights previously rejected by the federal courts — including the Supreme Court — for the first 200 years of the nation’s existence.
The current theory of individual gun rights sprang from the ruinous but effective work of the NRA, which was taken over by right wing extremists in the 1970s led by gun lobbyist Wayne Lapierre. Until then, not even the NRA took the position that gun rights were an individual right. As former Chief Justice Burger, of a staunch Republican conservative pedigree, said in 1991, “The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime.”
Moreover, as conservative legal scholars have pointed out, Heller and its progeny, Bruen — decided in 2022, and which expanded the right to carry firearms outside the home — do enormous damage to the body politic because they strip away the power of states and local communities to adopt gun laws that address the particularized safety issues guns pose to their citizens. Federal appeals court Judge Harvey Wilkerson III, a conservative constitutional scholar, summarized the governance problem at the core of Heller: “Heller diminished the benefits of decentralized decision-making in adapting gun policies to local opinions and concerns…. [E]stablishing a more uniform national gun policy through the Second Amendment particularly improvident because gun regulations are so uniquely tied to the different views and conditions among regions, individual states, and even smaller units of government.”
In other words, it is one thing to permit limited ownership of single-action hunting rifles in the wilds of Montana, and quite another to permit the ownership of automatic weapons and small arms of any kind in urban and suburban areas.
The former at least would appear reasonable if properly regulated, the latter is madness and will lead to the eventual destruction of a civilized society. We must begin to strip away the trope popularized by many liberal politicians that became the fashion after Heller, i.e., “respect for and strong support of the Second Amendment” while urging support for “common sense” gun measures. That circle cannot be squared. First, those who support Heller don’t buy politicians who
claim they support the Second Amendment. They immediately sniff out that it’s a politically disingenuous cover used by “liberal elites” who want to take away their right to own countless numbers of guns of any and all types and to carry them anywhere and anytime they choose. Second, Heller and Bruen are just the beginning of an effort by the six perversely radical members of the Supreme Court to continue to take away the ability of federal, state and city legislatures to craft sensible and effective gun laws. Lastly, over the past decade, as tracked by Nick Penzenstadler of USA Today, state legislatures have introduced between 1,000 and 1,500 gun laws a year over the last decade. Yet the carnage has increased, proving that our current attempt to skirt around the issue by treating gun violence with band-aids just does not work.
We cannot abide much longer in a country where gun massacres occur daily in our schools, houses of worship, nightclubs, movie theaters, shopping malls, supermarkets, on the campaign trail, at our constitutionally protected assemblies, and in our inner cities where the lives of our young children, the vast majority of whom are of color, are expendable collateral damage in nonstop shooting galleries. Other countries have effectively staunched potential epidemics of gun violence. If we believe what we say, that we are the greatest country on earth, we can do that too because the alternative is unthinkable.
But it will take work and no more skating around the real issue — the Supreme Court’s twisted and dangerous interpretation of the Second Amendment.
It is one thing to permit limited ownership of singleaction hunting rifles in the wilds of Montana, and quite another to permit the ownership of automatic weapons and small arms of any kind in urban and suburban areas.