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second amendment
Guns, the Supreme Court, and American Way of Death
How the nation's highest court supercharged the nation’s gun violence epidemic.
Sep 21, 2024
If you’re looking for someone to blame for the gun violence that has left our schools, streets, and communities soaked in blood, don’t point just at the National Rifle Association and their lackeys in the Republican Party. Raise another finger, ideally your middle one, toward a Supreme Court that has enabled the unceasing rise of gun-related carnage in all its ever-more-obscene forms.
The key decision came in 2008, when a 5-4 majority led by the late Justice Antonin Scalia ruled in District of Columbia v. Heller that the Second Amendment protects an individual right to own firearms. Prior to Heller, the combined weight of academic scholarship and legal precedent had construed the Second Amendment as protecting civilian gun ownership only in connection with long-antiquated state militias. This view was long seen as reflecting the spirit of the actual debates held during the Constitutional Convention of 1787.
Scalia and the other members of the conservative Heller majority purported to base their radical reinterpretation of the Second Amendment on their “originalist” understanding of the Founding Fathers’ intentions. But their novel conclusion essentially ignored the first 13 words of the Second Amendment regarding the necessity of preserving the militias.
This amounted to a distortion of American history. State militias played a critical role in the American Revolution, and before that, in maintaining order in the 13 colonies. As the Second Amendment historian Noah Shusterman has written:
The men writing the Bill of Rights wanted every citizen to be in the militia, and they wanted everyone in the militia to be armed. If someone was prohibited from participating in the militia, the leaders of the founders’ generation would not have wanted them to have access to weapons… Read the debates about the Constitution and the Bill of Rights, and the militia’s importance leaps off the page. Alexander Hamilton, writing in the Federalist Papers, called a well-regulated militia “the most natural defense of a free country.” His anti-Federalist critics agreed with the need for a citizens’ militia, writing that “a well-regulated militia, composed of the Yeomanry of the country, have ever been considered as the bulwark of a free people.”
Few errors of constitutional interpretation have had such deadly real-world consequences as Heller. Justice John Paul Stevens, who authored the principal dissent in Heller, later condemned the ruling as “the worst self-inflicted wound in the court’s history.”
Since Heller, both guns and gun deaths have surged in tandem in what the American Enlightenment Project calls the “Heller Inflection.” In 2008, there were 305 million guns in circulation and 31,500 reported gun deaths; there are now 470 million guns in circulation and over 45,000 reported gun deaths per year. Mass shootings, defined as events involving four or more victims, have grown as well—from 272 in 2014 to 653 last year, according to the Gun Violence Archive.
But as bad as Heller was, it still recognized that certain gun control measures remained “presumptively lawful.” In the words of Scalia:
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.
In 2010, in McDonald v. Chicago, the court extended Heller’s Second Amendment analysis to cover state and local governments in addition to federal enclaves. But in 2022, with Clarence Thomas’ 6-3 majority opinion in New York Rifle & Pistol Association v. Bruen, the court cast aside the limiting language of Heller about presumptively lawful gun-control restrictions.
Bruen struck down New York’s firearm permit system that had been on the books since 1909. To reach that result, the court rejected the traditional methods of judicial scrutiny used to determine the constitutionality of state and federal statutes that required judges to balance the governmental interests advanced by legislation against the competing rights of individuals. In place of interest balancing, Thomas and his cohorts substituted a specious “history and tradition” test based on the justices’ highly selective and subjective reading of history and their sense of tradition.
In fact, gun-control regulations like the New York permit system have been commonplace in the United States from colonial times to the present. The founders supported a variety of strict measures, including the registration of guns issued to militia members and prohibitions against carrying firearms in public. By the early 1900s, nearly every state had enacted laws requiring firearm licenses and banning concealed carry.
As a result of Bruen, however, that history has effectively been neutered. Judges now must regard gun-control measures as presumptively invalid. To overcome the presumption, the government must prove that even the most commonsense laws are firmly rooted, either explicitly or by analogy, in the “nation’s historical tradition of firearm regulation.”
Together with Heller and McDonald, Bruen has led to a surge in Second Amendment challenges to gun laws since 2008. Pre-Heller, the lower federal courts decided an average of 26 gun cases per year; they now hear nearly 700 per year. The challengers are also winning a higher percentage of cases compared to the pre-Heller era, especially in cases decided by Donald Trump-appointed judges appointed. “Trump judges are close to casting 50% of their votes in favor of gun rights, when the average for other Republicans is 28%,” one study has found.
Last term, the Supreme Court surprised many by upholding a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun. However, it did so without signaling that it is prepared to modify the hard Second Amendment lines drawn in Heller and Bruen. As long as the court is controlled by right-wing activists beholden to the gun lobby and the Republican Party, those lines and their horrendous consequences are here to stay.
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Citing The Wire's Slim Charles, Hawaii Supreme Court Rebukes SCOTUS on 2nd Amendment
"The thing about the old days, they the old days."
Feb 08, 2024
A 2022 U.S. Supreme Court ruling paved the way for states to weaken gun safety laws, but the Hawaii Supreme Court made clear on Wednesday—with the help of the character Slim Charles on HBO's "The Wire"—that the high court's regressive decision would not force the state to allow residents to carry unlicensed firearms in public.
The court unanimously upheld the state's ban, saying that "states retain the authority to require individuals have a license before carrying firearms in public."
The 5-0 decision was at odds with New York State Rifle & Pistol Association, Inc. v. Bruen, the 2022 case in which the Supreme Court's right-wing majority ruled that laws and regulations pertaining to firearms must fall within the United States' so-called "historical tradition."
Last year, Bruen underpinned a decision made by a federal judge in Virginia that 18-to-20-year-olds could not be barred from purchasing guns since men as young as 18 were permitted to join armed militias at the time of the United States' founding.
"Time-traveling to 1791 or 1868 to collar how a state regulates lethal weapons—per the Constitution's democratic design—is a dangerous way to look at the federal constitution," wrote Hawaii Supreme Court Justice Todd Eddins in the ruling. "The Constitution is not a 'suicide pact.'"
Eddins acknowledged that the state's constitution, like the U.S. Constitution, 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."
"Those words do not support a right to possess lethal weapons in public for possible self-defense," he wrote.
The court issued an unequivocal rebuke of the importance the Supreme Court placed on the United States' "historical tradition."
"As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era's culture, realities, laws, and understanding of the Constitution," wrote Eddins before citing the words of Slim Charles, the fictional character from the popular series, who once said: "The thing about the old days, they the old days."
"This is a top-10 court precedent in history," one lawyer said of the citation.
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Rebrand 'Mass Shootings' as 'Second Amendment Celebrations'
When people hear the term, they will know that somewhere a true patriot is expressing his God-given Constitutional right.
May 13, 2023
I don’t know about you, but I’m getting really bummed out by all of these mass shootings. One after another, day after day, more than one a day since the beginning of the year. Something has to change. This is America after all. The United States has a long history of dealing with challenging problems.
So, what’s the solution? Simple, rebranding.
America has a long history of rebranding, of changing the terms we use when dealing with unpleasant issues.
When slaughtering Indigenous people and stealing their land started to sound bad, we rebranded. We called it “Manifest Destiny” and said it was about spreading freedom from the Atlantic to the Pacific. This made it sound noble.
Clearly, we Americans have a long history of successfully rebranding difficult issues. Or more accurately, I should say that conservatives have a long and successful history of rebranding troubling issues.
When enslaving and dehumanizing the people stolen from Africa started to get bad press, slave owners knew they had to do something. So they rebranded. They began calling it “The Peculiar Institution.” Peculiar, sort of like your weird Uncle Phil, with his handlebar mustache and old MG, who affects a British accent. Although, as peculiar as old Phil was, he never whipped anyone to death or bred them like cattle.
After the South lost the Civil War, Southerners knew they needed to change the terms of the debate. They knew that if everyone thought they had simply been fighting to maintain slavery they would lose sympathy. They knew they had to do something to preserve any vestige of their traditions (you know, white supremacy). So they rebranded. They starting to refer to the war as “The Lost Cause.” This just sounds mundane, non-offensive. It made it sound not much different than the loss of a hard-fought, though honorable, soccer match. Simply a “Lost Cause,” never mind the fact that they were seeking to preserve the enslavement and systematic brutalization of millions of human beings, or the fact that Confederate soldiers routinely and summarily executed Black Union soldiers on the spot. Reality often is bad, and so sounds bad. Much better to hide behind banality, behind “The Lost Cause.”
When systemic and frequently violent racism in the 1950s started to get bad press, Southerners wisely rebranded it from white supremacy to “States’ Rights.” This sounds so much more noble, and hearkens back to the nation’s founding. Who could argue with a state simply seeking to preserve its own rights?
Perhaps the most recent example of rebranding involves “Parental Rights.” This is how conservatives now sell book bans and restrictions on medical care for transgender youth. After all, what kind of monster doesn’t support the right of a parent to protect and safeguard their own child? “We’re not banning books,” they say, “we’re not discriminating against gay or transgender children,” conservatives add, “we’re simply protecting the rights of parents to safeguard their children.” That just sounds so much better, doesn’t it?
Clearly, we Americans have a long history of successfully rebranding difficult issues. Or more accurately, I should say that conservatives have a long and successful history of rebranding troubling issues.
Now there are nearly daily news reports about mass shootings. And in nearly every news story there is also someone, a liberal politician or a grieving family member, demanding a solution. More often than not they call for restrictions on access to guns.
“Mass Shooting” has such a negative connotation, particularly when paired with “Mass Casualties.” The term is scary, and frankly it almost seems as if the biased liberal media has coined the term to embarrass gun rights advocates, and to make them look callous and uncaring. This must change.
I’ve batted the idea around in my mind for a while now, trying to come up with something more palatable or benign. And I think I’ve finally got it. Here’s my proposal.
Let’s changed “Mass Shooting” to “Second Amendment Celebration.” That shifts the tone from scary to laudatory, and when people hear about it (for example on Twitter at the hashtag “Active Shooter”) it will put a smile on their faces. They will know that somewhere a true patriot is expressing his God-given Constitutional right. This will also change the unwilling victim (“victim” is another downer of a word) from a casualty to a patriot, since they are nobly sacrificing their lives to preserve one of the primary rights in our revered Constitution.
This way, at each mass shooting… sorry, old habits die hard… at each Second Amendment Celebration, Americans can be reminded of what the Second Amendment means to all of us.
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