The Second Amendment in the 21st century

The Second Amendment in the 21st century

As I read about yet another school shooting, the 17th since the beginning of 2018, I’m reminded of the National Rifle Association’s reminder to the nation of gun advocates’ rights from the Second Amendment: “The right of the people to keep and bear Arms, shall not be infringed.”

This argument resonates with me because many of my column critics use the same approach. They take one line from my column and, ignoring context and other comments that give another perspective, go off on a rant which has little relationship to what my column really dealt with.

The NRA’s position ignores the entire first half of that now famous and contentious amendment. Let’s read the entire amendment and discuss the context in the light of the 21st century.

“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.” As you can easily see, the sentence – though awkwardly written – provides a deeper understanding than just the emphasis on the second part. The connection between a state militia and the right to bear arms should be closely linked, but in our times, it is not. Just the last half is included, not the first half.

In 1939 the Supreme Court interpreted the Second Amendment in the following way based on the court case “The United States vs. Miller.” The Second Amendment did not protect types of weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”

In our time, the concept of a well-regulated militia is archaic. There are no longer such organizations in the United States. The function of a militia is now found in the National Guard, which is controlled by the state and, in times of national crisis, by the federal government.

The way constitutional law works in America, this argument does not matter. What matters is how the Supreme Court has interpreted the Second Amendment in the 21st century. There are three Supreme Court decisions that have shaped modern interpretations about private individuals possessing weapons: District of Columbia vs. Heller (2008), MacDonald vs. Chicago (2010) and Caetano vs. Massachusetts (2016).

In the Heller case, the Court determined that individuals have the right to possess and carry firearms. In the MacDonald decision, the due process clause of the 14th Amendment was applied to allow individuals to possess and own firearms, even if local governments objected. The Court, in the Caetano case, declared, “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare.”

As you can see, the Court’s decision in 1939 differs wildly from the rulings in 2008, 2010 and 2016. The change was brought about by conservative justices who have broadened the meaning of the Second Amendment. Ironically, conservatives usually argue “original intent,” which refers back to the original context. This approach should have led to a restatement of the 1939 ruling. Had we been following the intent of the 1939 decision, most of the shootings we have seen in recent years would not have occurred. Guns would not have been politicized and members of Congress and even our president would not be intimidated by the NRA lobby.

There was an interview of a 1950s and 1960s civil rights advocate on National Public Radio recently. He admires what survivors of the Parkland, Florida, shooting are trying to do with demonstrations and media interviews. His caution, though, was that it will take decades to turn the mindset of a culture around. Those students should realize that change will not come quickly.

My prediction is that shootings will only continue in schools and other public gathering areas.

We have the Supreme Court to thank/curse for their recent decisions that fly in the face of the original intent of the Second Amendment and make us all afraid that we may find ourselves cowering in fear for our lives in some closet or classroom, hoping the shooter will pass us by.


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