Looking at the 2nd Amendment

Although I am a progressive and have been for pretty much all of my life, I’m not a gun control zealot. To be sure, I think the recent Supreme Court decisions holding that citizens have an individual right to bear arms were not decided properly as a matter of law – and we’ll get to that in a moment – but I don’t have a big objection to people being able to own guns to protect themselves. I do have an objection to people being able to own assault weapons and essentially unlimited amounts of ammunition, or to owning what amounts to an arsenal of guns. On the other hand, I don’t believe that screening people for mental health issues is going to be of much help in trying to stop the kind of Columbine-style episodes that have been plaguing this nation for years.

The Textural Argument

The Second Amendment, if you look at it, is deceptively simple. Here is the text of the 2nd amendment in its entirety:

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.

Second Amendment of the Constitution

That’s it. That’s the amendment in its entirety. The Second Amendment was, of course, a product of its times. And its times were all about the recently completed revolutionary war, in which the Thirteen Colonies won their independence from Great Britain. During the beginning of the revolutionary war, the British and British loyalists sought to disarm the Patriot colonialists, and the British Parliament established an embargo on firearms, parts and ammunition on the American colonies. That American Patriots had arms at their disposal was obviously a crucial element in their ability to prosecute a successful military campaign against the British.

The Second Amendment should really be read in context with the Third Amendment, which almost no one remembers, but which is essentially cut of the same cloth. Here is the Third Amendment in its entirety:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Third Amendment of the Constitution

We don’t talk about the Third Amendment anymore because being forced to house soldiers in your home hasn’t been an issue for over 225 years. But the Third Amendment was written in the same context as the Second Amendment, which is to say right at the end of the Revolutionary War. While the Third Amendment has faded from view, America’s gun culture and the political wars over the rights of gun ownership have kept the Second Amendment very much in the forefront of political controversies.

The Second amendment was ratified on December 15, 1791 as part of the Bill of Rights. There was a precedent for the second amendment in the English Bill of Rights from 1689, which included the provision that “Protestants may have arms for their defence suitable to their conditions and as allowed by law.” The right to bear arms was considered to be important by Early English settlers in America to, among other things, enable the people to organize a militia system, allow ordinary citizens to participate in law enforcement, allow citizens to safeguard against tyrannical government, allow citizens to participate in repelling invasion, suppress insurrection including slave revolts, and facilitating a natural right of self-defense. In particular, a number of early citizens wanted to be armed to be able to participate in slave patrols.1

Prior to 2008, there had been no Supreme Court cases in the United States finding an individual right to bear arms divorced from the establishment or maintenance of militias. In the early cases interpreting the Second Amendment, the court clearly did not find an individual right to bear arms. The decisions were mostly limited to the power of the federal government. So, for example, in United States v. Cruikshank, 92 U.S. 542 (1875) the court ruled on a case relating to the Ku Klux Klan depriving freed slaves basic rights such as freedom of assembly and the right to bear arms. The court ruled, among other things, that the Second Amendment “was not intended to limit the powers of the State governments in respect to their own citizens” and “has no other effect than to restrict the powers of the national government.” Subsequently, in Presser v. Illinois, 116 U.S. 252 (1886), addressing the question of whether citizens had the right to form their own militias, the court declared that although individuals have the right to keep and bear arms, a state law prohibiting common citizens from forming personal military organizations (and drilling or parading) is constitutional. The Court also noted that the Second Amendment only restrained the federal government from regulating gun ownership, not the individual states. Other cases, such as United States v. Miller, 307 U.S. 174 (1939), a challenge to the federal National Firearms Act, as applied to a person indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it, the court ruled that they could not say “that the Second Amendment guarantees the right to keep and bear such an instrument.” This was especially so given “that this weapon is [not] any part of the ordinary military equipment, or that its use could contribute to the common defense.” That was the general state of the constitutional law prior to the Heller and McDonald cases.

The Heller and McDonald Cases

Until Heller and McDonald were decided in 2008 and 2010, there was no Supreme Court opinion that had ever found that there was an individual right to bear arms in the United States that was not related to a well-regulated militia. So for 217 years, since the Second Amendment’s ratification, the Supreme Court had never gotten around to “discovering” this right.

The Heller Case

The Heller case was a challenge to a complicated and somewhat conflicting set of statutes in the District of Columbia which generally prohibited the possession of handguns.[1] District of Columbia v. Heller, 554 U.S. 570 (2008). Dick Heller, the named respondent, was a D. C. special police officer authorized to carry a handgun while on duty at the Thurgood Marshall Judiciary Building. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused.

The Opinion in the case was rendered by Justice Scalia, an in an opinion that showed an enormous amount of intellectual hypocrisy, he essentially read the clause related to a “well-regulated militia” out of the Second Amendment.[2] In Scalia’s reading, the Second Amendment looks like this:

The right of the people to keep and bear arms shall not be infringed. Period.

Second Amendment as Rewritten by Scalia

Scalia then went through a great deal of intellectual gymnastics to try to justify his decision, including trying to establish that weapons that were protected would be like those that were “in common use at the time,” notwithstanding that firearms technology had changed radically in the intervening years. Scalia opined that “dangerous and unusual weapons,” whatever those are, could still be prohibited.

So the Heller Court did not find the right to bear arms to be unlimited. That right did not include, for example, the right to own a rocket launcher or to have anti-tank missiles in your home. What kind of arms a person could possess was left open to interpretation. In addition, the case also established that the possession of firearms by felons and the mentally ill could still be prohibited; laws forbidding the carrying of firearms in sensitive places such as schools and government buildings were still valid; and laws imposing conditions and qualifications on the commercial sale of arms also did not run afoul of the Constitution. Again, where the boundaries to cases were would be left open to interpretation.

The MacDonald Case

Because it involved the District of Columbia and not one of the fifty states, that question of whether an individual state could prohibit their citizens from carrying firearms was decided two years later in the separate and subsequent case known as McDonald v. Chicago, 561 U.S. 3025 (2010). In effect, the case and the decision were very similar to Heller. In this instance Otis McDonald, a 76-year-old retired maintenance engineer living in the Morgan Park neighborhood since 1971 wanted to purchase a handgun for his own protection, believing that his neighborhood had been taken over by gangs.[3] Due to Chicago’s requirement that all firearms in the city be registered, yet refusing all handgun registrations after 1982 (when a citywide handgun ban was passed) McDonald was unable to purchase a handgun legally. This time it was Justice Alito writing for the majority, but his opinion was essentially very similar to that written by Justice Scalia two years earlier. He applied the Second Amendment to the states and the city through the Fourteenth Amendment, and more or less repeated the same limitations that Scalia had found in Heller.

The Australian and New Zealand Experiences

In 1996 in the town of Port Arthur in Australia, a 28-year-old man named Martin Bryant went on a killing spree that left 35 people dead. It was the worst episode of this kind in the history of Australia. Following the spree, the Australian Prime Minister formulated what was known as the National Firearms Programme Implementation Act of 1996, which restricted the private ownership of high capacity semi-automatic rifles, semi-automatic shotguns and pump-action shotguns. The act also required the uniform licensing of firearms. Independently,  the Commonwealth of Australia initiated a gun buy-back program that destroyed an estimated 631,000 firearms.

What has been striking in the years since this incident is the decrease in murders and firearms-related deaths in Australia. These preventive actions did measurably reduce both homicides and suicides through gun use, although the exact amount is, of course, a matter of debate. It’s never going to happen here in the United States, both because of our Second Amendment and because of the interpretation of that amendment by the Heller and McDonald cases, as well as our pro-gun culture, which is much stronger here than in Australia. But at least it gives one concrete example of what can happen when a country radically changes its approach to guns.

Similary, New Zealand changed it’s gun laws after the Christchurch mosque shootings of March 15, 2019. In that instance, a 28 year old white supremacist from Australia attached people at a mosque and subsequently at an Islamic Center, killing 51 and injuring 49. The perpetrator live-streamed the first attack on Facebook. In response, Prime Minister Jacinda Ardern proposed to ban military-style semi-automatic assault weapons, which proposal the parliament approved. There has not been enough time to evaluate the efficacy of this ban, but it will be interesting to see what does happen.

Why Mental Health Checks Won’t Work

But progressives are also wrong about gun control. We’re wrong about two things: first, we’re wrong in our belief that preventing those with mental health issues from being able to obtain guns will prevent the kind of massacres that happened in Newtown; second, we’re also wrong in our belief that new restrictions on semi-automatic rifles and high capacity magazines will do much to prevent these kind of massacres, although the scope of the disasters may become a little bit circumscribed.

First to the mental health issue: those with expertise in mental health forensics will tell you that while the shooters in these massacres — the Adam Lanzas and Seung-Hui Chos, the Eric Harris and Dylan Klebolds of this world — all have common personality and mental health characteristics, they also share those characteristics with thousands upon thousands of young men (and women) who never grow up to be a shooter. The problem is that our mental health system is still in its infancy, really not much more progressed than our medical system was when doctors were still doing bloodletting. The mental health system is notoriously bad at predicting future behavior and not that much better at alleviating mental health issues, with some notable exceptions. Drugs have helped in some cases, but they’re still a blunt instrument. Until drugs can be genetically engineered for individual patients — also known as “personalized” medicine, and still some years away from practical applications in the general populace — that lack of efficacy will likely continue.

Second, to the question of whether restrictions on semi-automatic rifles and high capacity magazines will do much to prevent future massacres: the prevailing evidence is that it won’t. These shooters are typically very intelligent guys who engage in a great deal of planning ahead of time. See, for example, Anders Behring Breivik, the extreme right-wing nationalist who killed 69 teenagers at a summer camp in Norway back in 2011. Norway, is of course, exactly the kind of progressive social democracy that conservatives in the United States hate. It has strict gun control laws, although, because of its history with hunting and sport shooting, does have a significant number of guns in circulation. (A 2007 analysis of gun ownership world-wide indicated that Norway had about 31 guns per 100 residents, whereas the United States had 89.) None of Norway’s gun regulations kept Breivik from purchasing guns legally and over the Internet, and purchasing some other weapons supplies in Poland. In short, with the number of weapons in circulation here and the inconsistency of both laws and their enforcement, it would not likely be that difficult for a dedicated sociopath to acquire whatever supplies he (or she) needed for a massacre.

But the level of planning also illuminates the insanity of Wayne LaPierre’s proposal, in response to Sandy Hook, to have armed guards stationed at every school in the United States. Take, for example, the case of the Kaufman County murders: on January 30, 2013, Mark Hasse, a Chief Assistant District Attorney for the Kaufman County Criminal District Attorney’s Office, was murdered out in broad daylight while walking from his car to the courthouse. His boss, District Attorney McClelland, already licensed as a gun owner, took to wearing his gun at all times, including inside his house. Nevertheless, he was surprised on the morning of March 30, 2013 by the same assassin — who turned out to be the wife of a former Judge, convicted of crimes while in office! — and both McLellan and his wife were murdered.

The Element of Surprise

This is what those who think that owning a gun will protect them don’t understand: it almost never protects them, because the attacks virtually always come as a complete surprise. That’s why in a pro-gun state like Arizona there was nobody to protect Gabby Giffords from Jared Lee Loughner. That’s why in a pro-gun state like Colorado there was no one to protect fans of “The Dark Knight Rises” from James Eagan Holmes. And that’s why armed guards in schools would be completely ineffective. Because the guards would be bored to tears waiting for something to happen at the approximately 133,000 public and private schools in the United States. And when something finally did happen at one of these schools, they wouldn’t be ready for it because they wouldn’t be expecting it. That’s human nature.

For example, the Second Amendment. The debate over whether Americans have an individual right to bear arms ended with the 2008 case of District of Columbia v. Heller, 554 U.S. 570, bolstered in 2010 by the case of McDonald v. Chicago, 561 U.S. 3025. The Heller case firmly enshrined the notion that Americans have an individual right to carry arms based on the Second Amendment. Heller applied that principle to the federally-controlled District of Columbia; McDonald applied it further to the individual states. The Second Amendment, lest we forget, is remarkably short and reads in its entirety 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 would argue that the Heller and McDonald case were incorrectly decided: the well-regulated militia, in a common sense reading of this single sentence, is clearly the precondition for the right to bear arms. We do, in fact, have well-regulated militias, and they are, in fact armed. I’m talking, of course, of the state militias. About half the states have them, and the ones that don’t certainly could have them. (The state militias should not be confused with the closely-related national guard, which are part of the militia of the United States.)

One of the ironies of the Second Amendment is that it was a way to arm citizens against outside invaders, not a way to arm citizens to take arms against their own government.

But regardless of what I think, the case is closed. Heller and McDonald have been decided, and under the principle of stare decisis, it is very unlikely that they will be “undecided,” especially while the court remains essentially conservative. Of course, neither Heller nor McDonald stand for the proposition that there can be no regulation of firearms, as some of the more radical pro-gun elements would have you believe. (If they did, then the average American could also buy shoulder-fired anti-tank or anti-aircraft missiles, as those would be much more effective in a war against the American military.)

Conservatives are wrong in their belief that the Second Amendment does not allow for the regulation or limitations on firearms. They are wrong when they suggest that to have to register firearms will lead to those firearms being taken away anymore than having to register a car will lead to the car being taken away. What it may lead to is to have the firearm taken away if you misuse it, which is exactly what’s true for cars as well. Conservatives are also wrong to believe that taking guns off the streets wouldn’t increase public safety. That can be demonstrated by the example of Australia, which in response to the 1996 Port Arthur Massacre — in which Martin Bryant killed 35 people at the historic Port Arthur site for reasons that have never been clearly established — initiated strict controls on semi-automatic rifles and all semi-automatic and pump-action shotguns, and a tightly restrictive system of licensing and ownership controls, as well as a gun buy-back program that destroyed an estimated 631,000 firearms. These preventive actions did measurably reduce both homicides and suicides through gun use, although the exact amount if, of course, a matter od debate between pro- and anti-gun factions. But it doesn’t matter if this was successful in Australia; because it’s never going to happen here. It’s never going to happen here because the Heller and McDonald cases have already been decided.

But progressives are also wrong about gun control. We’re wrong about two things: first, we’re wrong in our belief that preventing those with mental health issues from being able to obtain guns will prevent the kind of massacres that happened in Newtown; second, we’re also wrong in our belief that new restrictions on semi-automatic rifles and high capacity magazines will do much to prevent these kind of massacres, although the scope of the disasters may become a little bit circumsribed.

First to the mental health issue: those with expertise in mental health forensics will tell you that while the shooters in these massacres — the Adam Lanzas and Seung-Hui Chos, the Eric Harris and Dylan Klebolds of this world — all have common personality and mental health characteristics, they also share those characteristics with thousands upon thousands of young men (and women) who never grow up to be a shooter. The problem is that our mental health system is still in its infancy, really not much more progressed than our medical system was when doctors were still doing bloodletting. The mental health system is notoriously bad at predicting future behavior, and not that much better at alleviating mental health issues, with some notable exceptions. Drugs have helped in some cases, but they’re still a blunt instrument. Until drugs can be genetically engineered for individual patients — also known as “personalized” medicine, and still some years away from practical applications in the general populace — that lack of efficacy will likely continue.

Second, to the question of whether restrictions on semi-automatic rifles and high capacity magazines will do much to prevent future massacres: the prevailing evidence is that it won’t. These school shooters are typically very intelligent guys who engage in a great deal of planning ahead of time. See, for example, Anders Behring Breivik, the extreme right-wing nationalist who killed 69 teenagers at a summer camp in Norway back in 2011. Norway, is of course, exactly the kind of progressive social democracy that conservatives in the United States hate. It has strict gun control laws, although, because of its history with hunting and sport shooting, does have a significant number of guns in circulation. (A 2007 analysis of gun ownership world-wide indicated that Norway had about 31 guns per 100 residents, whereas the Uniter States had 89.) None of Norway’s gun regulations kept Breivik from purchasing guns legally and over the Internet, and purchasing some other weapons supplies in Poland. In short, with the number of weapons in circulation here and the inconsistency of both laws and their enforcement, it would not likely be that difficult for a dedicated sociopath to acquire whatever supplies he (or she) needed for a massacre.

But the level of planning also illuminates the insanity of Wayne LaPierre’s proposal, in response to Sandy Hook, to have armed guards stationed at every school in the United States. Take, for example, the case of the Kaufman County murders: on January 30, 2013, Mark Hasse, a Chief Assistant District Attorney for the Kaufman County Criminal District Attorney’s Office, was murdered out in broad daylight while walking from his car to the courthouse. His boss, District Attorney McClelland, already licensed as a gun owner, took to wearing his gun at all times, including inside his house. Nevertheless, he was surprised on the morning of March 30, 2013 by the same assassin — who turned out to be the wife of a former Judge, convicted of crimes while in office! — and both McLellan and his wife were murdered.

This is what those who think that owning a gun will protect them don’t understand: it almost never protects them, because the attacks virtually always come as a complete surprise. That’s why in a pro-gun state like Arizona there was nobody to protect Gabby Giffords from Jared Lee Loughner. That’s why in a pro-gun state like Colorado there was no one to protect fans of “The Dark Knight Rises” from James Eagan Holmes. And that’s why armed guards in schools would be completely ineffective. Because the guards would be bored to tears waiting for something to happen at the approximately 133,000 public and private schools in the United States. And when something finally did happen at one of these schools, they wouldn’t be ready for it because they wouldn’t be expecting it. That’s human nature.

Role of the National Rifle Association

The National Rifle Association, founded in 1871 as an organization intended to advance rifle marksmanship and safety, has effectively been hijacked since 1975 for the purpose of lobbying against firearm legislation. According to John M. Bruce and Clyde Wilcox, two political scientists, the NRA “shifted its focus in the late 1970s to incorporate political advocacy, and started seeing its members as political resources rather than just as recipients of goods and services.” The politics of the National Rifle Association was articulated by movie star and then NRA-President Charlton Heston, when, on May 20, 2000 at the the 129th NRA convention in Charlotte, North Carolina, concluded a speech by saying “from my cold dead hands” in relation to the efforts of Democrats to take away his guns.

The Jade Helm Experience

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Relationship to Public Health

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The Australian and New Zealand Experiences

In 1996 in the town of Port Arthur in Australia, a 28-year-old man named Martin Bryant went on a killing spree that left 35 people dead. It was the worst episode of this kind in the history of Australia. Following the spree, the Australian Prime Minister formulated what was known as the National Firearms Programme Implementation Act of 1996, which restricted the private ownership of high capacity semi-automatic rifles, semi-automatic shotguns and pump-action shotguns. The act also required the uniform licensing of firearms. Independently,  the Commonwealth of Australia initiated a gun buy-back program that destroyed an estimated 631,000 firearms.

What has been striking in the years since this incident is the decrease in murders and firearms-related deaths in Australia. These preventive actions did measurably reduce both homicides and suicides through gun use, although the exact amount is, of course, a matter of debate. It’s never going to happen here in the United States, both because of our Second Amendment and because of the interpretation of that amendment by the Heller and McDonald cases, as well as our pro-gun culture, which is much stronger here than in Australia. But at least it gives one concrete example of what can happen when a country radically changes its approach to guns.

Similary, New Zealand changed it’s gun laws after the Christchurch mosque shootings of March 15, 2019. In that instance, a 28 year old white supremacist from Australia attached people at a mosque and subsequently at an Islamic Center, killing 51 and injuring 49. The perpetrator live-streamed the first attack on Facebook. In response, Prime Minister Jacinda Ardern proposed to ban military-style semi-automatic assault weapons, which proposal the parliament approved. There has not been enough time to evaluate the efficacy of this ban, but it will be interesting to see what does happen.

What Can Actually be Done?

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[1] In particular, the statutes made it a crime to carry an unregistered firearm, but then also prohibited the registration of handguns. Wholly apart from that prohibition, the DC laws established that no person may carry a handgun without a license, and then allowed the chief of police to issue 1 year licenses at his discretion. Separately, District of Columbia law also required residents to keep their lawfully owned firearms, unloaded and disassembled or bound by a trigger lock or similar device, unless they are located in a place of business or are being used for lawful recreational activities. Finally, the law grandfathered in guns that had been registered prior to 1975 and those possessed by active and retired law enforcement officers.

[2] The reason this is an example of intellectual hypocrisy is that it was Justice Scalia who in other cases, such as the one that validated gay marriage in the United States, was always completely exercised when any of his fellow justices strayed from the actual text of the Constitution, and read meaning into the Constitution that the framers had not necessarily intended.

[3] An experienced hunter, McDonald legally owned shotguns, but believed them too unwieldy in the event of a robbery.

  1. To be fair, there are legal historians such as Paul Finkelman who dispute the notion that the Second Amendment was enacted to help arm slave patrols, an allegation that had been made by political commentator Thom Hartmann, among others.