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The Second Amendment: A knotty problem [1]

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Date: 2023-04-20  

There is nothing straightforward about interpreting the meaning of the Second Amendment.

On Monday, April 17, 2023, one of the most despicable congressmen now serving in the House of Representatives, the Republican Jim Jordan of Ohio, who chairs the House Judiciary Committee, held hearings in New York City designed to show that the Democratic district attorney of Manhattan, Alvin Bragg, is personally responsible for a huge increase in every type of serious crime in New York City, and that in addition, he has coddled criminals without exception, and has treated the supposedly growing number of victims of terrible crimes shabbily. Jordan, who duplicitously headlined the hearings “Victims of Violent Crime in Manhattan,” presided over what can only be called a travesty of congressional hearings.

One of Jordan’s witnesses, who asserted that he has been employed in law enforcement for 40 years, declared that the numbers of rapes, robberies, and murders in the city have skyrocketed since Alvin Bragg took office, on January 1, 2022. Every statistic that witness offered was totally false, as Democratic congressmen on the committee later showed, quoting figures compiled by the New York City Police Department. Moreover, while lying about crime, Republicans refuse to take any steps at all to reduce gun violence.

I felt similarly bombarded by all sorts of lies masquerading as God’s truth during a few hours of online research into the history of the Second Amendment, which was added to the U.S. Constitution, along with all the other amendments in the Bill of Rights, in 1791, and which is worded as follows:

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.

I read only a tiny portion of the mountains of online articles and blogs posted by gun lovers, who include members of the National Rifle Organization (five million strong as of December 2018, according to their Website); many U.S. senators and members of the House of Representatives—the vast majority of them Republicans who receive large donations from the NRA and lobbyists for gun manufacturers; and gun and ammunition manufacturers. Gun lovers assert that the Second Amendment of the Constitution gives virtually everybody a sacred right to own as many guns and kinds of guns as they want. Their arguments include their insistence that the first clause in the Second Amendment is only one explanation among many for why each citizen has the right to bear arms and is not a necessary condition. The current Supreme Court, too, has ruled that that introductory clause is of no consequence and should be ignored. Many gun lovers maintain that the word “militia” referred to all males (but not Native Americans or African-Americans, of course), whether they had ever served or were serving in a militia. They reject arguments about the weapons the Founding Fathers had in mind—muskets, which shot only one lead ball at a time and took a minute to reload—on the grounds that that is beside the point, because if the Founding Fathers wanted the amendments to refer only to things existing at that time, then the First Amendment could not encompass the telegraph, the telephone, publications printed with modern equipment, or the internet, an so on.

I read only a tiny portion of the mountains of evidence cited by proponents of gun-control showing that the first part of the Second Amendment must be accepted as an inherent, integral part of it. For example, Judge Jay Bybee of the 9th U.S. Circuit Court of Appeals wrote in 2021 in Young v. State of Hawaii, “Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self defense.” (Shockingly, Bybee was a co-author of the so-called torture memos during the presidency of George W. Bush, which maintained that it was perfectly fine to use waterboarding and other tortures during intelligence gathering.)

Warren Burger, who served as the chief justice of the Supreme Court from 1969 until 1986, wrote for the Associated Press in 1991, “The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. In referring to ‘a well regulated militia,’ the Framers clearly intended to secure the right to bear arms essentially for military purposes.” Burger stated in an interview on NPR in 1991 that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” It is a great pity that Burger did not make those statements while he was on the Court.

In the course of my research I learned about a peculiar case decided in 1939—Miller v. United States—which concerned the indictment of Jack Miller, a known bootlegger, bank robber, and criminal-gang member, and one of his cronies for unlawfully bringing from Oklahoma to Arkansas “an unregistered double-barrel 12-gauge shotgun having a barrel less than 18 inches in length, in violation of the National Firearms Act.”

The Court ruled for the plaintiffs—the U.S. government—declaring that the Second Amendment did not guarantee to individuals the right to own and carry such a weapon, because there was no evidence that such weapons were necessary for the preservation or efficiency of a well-regulated militia, or that such weapons were among those used by the military, or that the security of the populace is dependent upon such weapons. In the words of Justice James Clark McReynolds, who wrote that opinion, “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” (Perhaps surprisingly, McReynolds was widely described by his contemporaries as uncommonly nasty and selfish and an outrageous bigot.)

The Court’s decision in Miller v. United States would appear to support gun-control proponents’ interpretation of the Second Amendment, but it turns out that gun lovers have rejected that ruling as fatally flawed, because the U.S. bought at least 30,000 shotguns for use by the army during World War I, and that fact, they assert, gives the lie to the decision, which simply shows that the members of the Court had a flawed knowledge of history. These gun lovers also reject it because the defendants did not appear in court at all, and thus did not offer any arguments in support of their position, and that, furthermore, Miller died before the Supreme Court made public its decision, having been shot and killed in April of that year.

Just as people have cited the Bible as grounds for all kinds of cruelties, gun lovers interpret the Constitution to suit themselves to a T. For every 100 people in the U.S., it is estimated that there are 120 guns. And what the Centers for Disease Control labels firearm-related injuries became the leading cause of death in the U.S. among children and teenagers in 2020. It seems glaringly obvious to me that, given the series of pro-gun rulings of the right-wing justices who now constitute a supermajority on the Supreme Court, the manufacture, purchase, and ownership of guns of all makes and models will continue to proliferate in the United States—and cause thousands of needless deaths—until liberals again constitute a majority on the Court.

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[1] Url: https://www.dailykos.com/stories/2023/4/20/2164988/-The-Second-Amendment-A-knotty-problem

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