American Madness: Freedom and the Second Amendment

American Madness: Freedom and the Second Amendment

My country is insane. It may be insane in many ways, but most of all it is insane about guns. Guns kill people every day in this country. Guns kill thousands of people a year in this country. Most murders in this country (and we have thousands of them every year) are committed with guns. Most gun killings among us go unnoticed beyond the locality in which they occur, but sometimes gun violence makes big news. Aurora, Newton, Orlando, San Bernardino, Charleston, Las Vegas, Sutherland Springs, the names of these towns and cities evoke images of gun-inflicted horror. It happens again and again in the US. It happens far, far more among us than it does in countries that have sensible restrictions on guns—and that’s every other advanced country in the world besides us. I have heard Canadians call us insane about guns and wonder why in God’s name we don’t do something about them. Good question. Yes, oppressive regimes like the one that ruled the Soviet Union enforce severe restrictions on private gun ownership; but democratic countries that value freedom as much as we do restrict gun ownership too. We are tragically unique among the world’s nations in the extent to which we tolerate gun violence. The rest of the world quite properly thinks we’re nuts.

So why do we tolerate the nearly unrestricted sale of all kinds of guns other than fully automatic rifles, sale of which is more strictly regulated (though not outright prohibited) than the sale of other types of weapons? The answer is the legal interpretation that the courts, up to and including the United States Supreme Court, have given to the Second Amendment to the United States Constitution. That Amendment reads:

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.

Resolution of the legal issue of whether or not the Second Amendment guarantees an individual right to keep and bear arms was unclear until the Supreme Court decided the case of District of Columbia v. Heller, 554 U.S. 570 (2008). In that case the Court held by a 5-4 vote that the Second Amendment does guarantee such a private right. In reaching that decision the Court disregarded long-accepted principles of Constitutional construction and read the first two phrases of the Amendment out of the law. It also read the word “people” to mean “persons,” which it doesn’t necessarily mean. The Heller case made it substantially more difficult for either the federal government or state and local governments to enact common sense, meaningful regulation of firearm ownership. In reaching that decision the majority of the Heller court was quite simply just wrong.

It is a well-established principle of judicial interpretation of Constitutional or statutory provisions that a court will give meaning to every part of a provision it is interpreting if it is reasonably possible for it to do so. The court assumes that the authority which enacted the provision had some reason for including everything that it put into the law. The court will not find any part of a law to be meaningless or superfluous unless it truly can find no possible reason for a particular wording in the law. The Heller court disregarded this principle in reaching its decision.

The Second Amendment does not simply say “the right of the people to keep and bear Arms, shall not be infringed.” That wording is only part of the Amendment. Unlike most Constitutional provisions, this language of the Second Amendment has language that introduces and leads up to it. That language is: “A well regulated Militia, being necessary to the security of a free State….” For purposes of Constitutional interpretation we can take as given that a well regulated militia is indeed necessary to the security of a free state. The legal issue here is whether or not that language affects the meaning of the phrase that it introduces. The legal assumption must be that it does. Otherwise, why would the drafters have put it in the Amendment? We must assume that the men who wrote the Second Amendment weren’t sitting around throwing words into an amendment for no reason. The language they put into the Amendment refers to two significant issues of government, the maintenance of a “well regulated Militia” and the security of the state, somewhat inaccurately said in the Amendment to be free. People drafting a constitution for a new country would of course be concerned with those two issues. Those issues are not peripheral to the structure and running of a country but are central to it. The opening phrases of the Second Amendment are not irrelevant to the Amendment’s meaning. They can’t be, the majority of the Heller court to the contrary notwithstanding.

So if we are to give meaning to the Amendment’s reference to a well regulated militia and the security of the state, what is that meaning? The quite obvious first meaning of that language is that the Amendment does not refer to an unlimited individual right to keep and bear firearms. Instead, the Amendment creates some kind of right to keep and bear arms in connection with the state maintaining and operating a militia and to promote the security of the state. Note: Not the security of the individual, the security of the state. To understand what that provision may have meant in the late eighteenth century when the Second Amendment was drafted, let’s consider the historical context of that amendment.

When the Second Amendment was drafted the United States had recently won its independence from England in the Revolutionary War. That war was fought in part at least by local militias. That is, it was fought by citizens who brought their own rifles—muskets actually, about which more below—to the battle. Surely the framers of the Constitution and its Amendments assumed that any threat to the security of the new nation would be met in the same way, with private citizens bringing their muskets and banding together to defend their country. So they said in the Second Amendment that the right of the people to keep and bear arms for that purpose shall not be infringed. There is no reason to believe that the men who drafted the Second Amendment intended anything other than that. Had they intended something other than that they would not have included the first two phrases in the Second Amendment.

Now, the world today is very different from the world of the late eighteenth century. The United States Supreme Court has often interpreted Constitutional provisions in ways that fit the life of the country and her people at the time the case before them arose that the framers of the Constitution never considered. A classic example is the case of Obergefell v. Hodges, 576 U.S. ___ (2015), which used the equal protection and due process clauses of the US Constitution to guarantee the right of marriage to same gender couples. Did the men who drafted the Fifth and Fourteenth Amendments to the Constitution ever think that they were creating a right for same gender couples to marry? Of course not. Does that make the Obergefell decision wrong? No, it doesn’t. The world has changed since the Fifth Amendment was adopted in 1791 and the Fourteenth Amendment was adopted in 1868. Reasonable expectations around the issues of equal protection have changed. Judicial interpretation of the Constitution must and does change to reflect the changing life of the country’s people. If it did not the Constitution would quickly become a dead letter unable to regulate the common life of those people. So conservative “strict constructionists” to the contrary notwithstanding, the Constitution does grow and adapt to a changing world and a changing country.

Now consider the world in which the Second Amendment was written. National security depended on well regulated militias, as I noted above. Moreover, the “Arms” that the Amendment has in mind are muzzle loading muskets. They were the arms that existed at the time. They could at best fire perhaps one round per minute. That there would ever be such a thing as an automatic or semiautomatic rifle capable of firing multiple rounds a minute (or second) never occurred to the men who wrote that amendment. Can we say that they intended that there be a nearly unregulated right of the individual to keep and bear such modern arms of which the framers never conceived? Of course not. We cannot blindly apply their language from another era to the question of gun ownership today than we can blindly apply the equal protection language of another era to the issue of same gender marriage without considering how a changed world affects the meaning of that language. While the notion of equal protection has expanded to create previously unrecognized rights while the reality of weapons and national security has changed to make restriction of gun ownership more necessary and tenable than ever does not change the analysis. Constitutional interpretation must adapt to the changing realities of life. The realities of guns today are nothing like they were when the Second Amendment was adopted. So even if the men who wrote that Amendment thought they were creating a private, individual right to gun ownership (which they clearly weren’t), the realities today mean that that right, if it exists at all, must be strictly regulated, more strictly regulated by far than the right to bear muzzle loading muskets ever had to be.

There is no such thing as an unrestricted legal right under the United States Constitution. The Constitution guarantees the free exercise of religion, but in Reynolds v. US, 98 US 145 (1878) the court held that freedom of religion was not a defense to a criminal complaint alleging violation of a statute against polygamy. Neither is the right of free speech totally unlimited. There is truth in the old saw that you can’t yell fire in a crowded theater when there is no fire. The First Amendment guarantee of free speech does not mean that the state can’t limit child pornography. It is not legal to urge the use of violence to overthrow the government of the United States. No constitutionally guaranteed right is unlimited. They are all regulated, some of them quite strictly regulated. The supposed right to keep and bear arms can be strictly regulated too.

So let’s be done with the absurd notion that the sale of rapid fire weapons, whether rifles or pistols, can’t be more strictly regulated under the Second Amendment than it is. Of course it can. The realities of life today mean that it must be strictly regulated. Indeed, those realities mean that the sale and ownership of automatic or semi-automatic rifles must be prohibited altogether. Stephen Paddock did not kill nearly sixty people in Las Vegas with a muzzle loading musket. He did it with modified semiautomatic rifles. Devin Patrick Kelly did not kill nearly thirty people in a Texas church with a muzzle loading musket. He did it with a semi-automatic rifle. These realities cannot be ignored.

This madness must be stopped. Yes, mental health issues are often in play when mass shootings happen, and our country handles mental health issues miserably. Nonetheless, the ready availability of rapid fire weapons increases the harm a mentally disturbed person, or any person for that matter, can do by orders of magnitude over what they could do with the weapons of the late eighteenth century. So let’s stop letting the NRA and its gun manufacturing sponsors decide our firearms law. Let’s get some national mental health treatment and get over our insanity about guns. Guns are designed and built for only one reason—to kill. That means that if they are to be allowed at all they must be strictly, indeed very strictly, regulated. The Heller decision to the contrary notwithstanding, the Second Amendment does not prohibit such regulation. Heller itself leaves open the question of how much regulation of the private right it creates is permissible. Our country is mentally ill about guns, and this madness must stop. May we do what is necessary to make it stop.