A License To Kill - Un-Common-Sense

One of the most disingenuous and dangerous frauds being perpetrated on the American people is that the Constitution’s Second Amendment grants individuals the right to possess and bear arms for personal security. A Republican-majority Supreme Court has been the major culprit in promoting this mythology. Their most recent decisions ignore historical context, jurisprudence, and basic reading comprehension.

The Second Amendment states that a well-regulated militia being necessary to the securing of a Free State, the right of the people to keep and bear arms, shall not be infringed. The problem begins with those who treat the 1st and 2nd clauses as independent declarations. Rather than being treated independently, it should be read as such: “because of a well-regulated militia necessary to keep the United States free, we need to allow people to keep and bear arms.” In other words, the latter is necessary to achieve the former: a Free State.

Historical Context

Each of the 13 colonies had a militia before and during the American Revolution. When these militias were pressed into service during the Revolutionary War, they had a terrible track record. Of all the battles they fought, there is only one battle, which was Lexington and Concord, where they achieved victory. Countless accounts describe state militias as useless in the fight for independence. This was stated by no less than George Washington, who told Thomas Jefferson that “the militia he saw would not do.”

So why would a militia be so important? They were especially important to the slaveholding states because, despite being terrible at waging war, they were necessary and very effective at ending slave revolts. The staunchest opponents of federalism were George Mason and Patrick Henry. On the Federalist side of the debate was James Madison.

History often calls James Madison the father of the Bill of Rights, but truth be told, he earned that title reluctantly. James Madison did not want a separate Bill of Rights; he didn’t think it was necessary and believed it would harm the new republic. The Anti-Federalists, led by Henry and Mason, would not ratify the new Constitution without a separate Bill of Rights to weaken the federal government and strengthen state independence. This would help protect state sovereignty from federal government abuse of power and overreach.

Many Americans like to believe the Bill of Rights was handed down on tablets of stone from Mount Sinai, but in truth it was a compromise born of the power struggle between those who wanted a strong federal government and those who wanted a weak one.

One of the most contentious issues involved the states’ militias. The new Constitution gave Congress the authority to organize, arm, and discipline the militia. Henry, Mason, and other Anti-Federalists were vehemently opposed to the Federal government having that much power over their militias. They were especially concerned that Congress could disarm their militias. Mason said, “The militia may be here destroyed by that method which has been practiced in other parts of the world before; That is, by rendering them useless – by disarming them.”

Henry argued that the authority to arm the militia implied the authority to disarm it, and he raised the possibility that Congress, overly influenced by the abolitionist North, might do so. The Anti-Federalists’ predominant concerns about their militias were protecting enslavers against revolts (in Virginia, Blacks outnumbered whites) and protecting the states from the federal government.

References to the individual’s personal safety are rare, almost nonexistent. The only reason the individual was given the right to bear arms was to avoid the budgetary burden of paying for arms for members of the state militias, a version of BYOBB (Bring Your Own Bayonet & Bullets).

The Federalists prevailed, barely, and the Constitution was ratified, but Henry and Mason had Madison over a barrel. They appointed two Anti-Federalists as Senators for Virginia and gerrymandered Madison’s district to consist of Anti-Federalist counties. They even picked James Monroe, a rising Anti-Federalist politician, to run against Madison. Madison succumbed to the pressure and promised to write a Bill of Rights.

Someone might say that this is quite the cynical take on history, but I say don’t put anything past people who can say all men are created equal and then say Black people were 3/5ths of a person. Madison then wrote an amendment to address Virginia’s concerns about having an armed militia. The Second Amendment.

For more than 130 years, the case that established how the Second Amendment was interpreted was United States v. Cruikshank, in which the Supreme Court overturned the convictions of members of a white mob that disarmed and killed over 100 Black citizens. The Court ruled that the federal indictments were invalid because the First and Second Amendments restricted only the federal government. The Court stated,

“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”

supreme.justia.com. United States v. Cruikshank | 92 U.S. 542 (1875) | Justia U.S. Supreme Court Center (p. 3). (Function).

Cruikshank was a case in which a white mob disarmed and murdered Black citizens. The federal government charged the mob leaders for their crimes under the Enforcement Act of 1870 for conspiring to deprive the victims of their constitutional rights. Lower courts found the defendants guilty, but the Supreme Court overturned their convictions. The Court reasoned that the Second Amendment does not grant citizens a positive right to bear arms. Instead, the Court held that the Second Amendment merely prevents Congress from infringing on that right.

Beyond defining the Second Amendment’s language, the case also showed how race influences judicial decisions. The Court clearly felt that any right bestowed for white Americans could be denied Black Americans. The Court believed that states and local governments were free to restrict, disarm, or regulate gun ownership as they saw fit, especially as it applied to newly freed slaves. The Presser case reinforced the Court’s view that states had sole power to regulate firearms.

The decisions in United States v. Cruikshank and the subsequent case Presser v. Illinois (1886) formed the foundation for defining the Second Amendment’s constitutional limits.

Presser v. Illinois involved an organization that used and displayed weapons while marching during a public event. Presser, the plaintiff, was indicted for violating

the following sections of Art. XI of the Military Code of that state, Act of May 28, 1879, Laws of 1879, 192.

“§ 5. It shall not be lawful for any body of men whatever other than the regular organized volunteer militia of this state and the troops of the United States to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state without the license of the Governor thereof, which license may at any time be revoked, and provided further that students in educational institutions where military science is a part of the course of instruction may, with the consent of the Governor, drill and parade with arms in public under the superintendence of their instructors, and may take part in any regimental or brigade encampment under command of their military instructor, and while so encamped shall be governed by the provisions of this act.”

Presser claimed that the provision violated the Second Amendment of the U.S. Constitution.

The Court decided in Presser that:

“The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. 102, 36 U. S. 139, the ‘powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,’ ‘not surrendered or restrained’ by the Constitution of the United States.”

Redefinition of Second Amendment

The protagonist responsible for misconstruing the Second Amendment and converting it into the most powerful and unassailable part of our Constitution is the Supreme Court, specifically Republican appointed justices. They have manufactured a political agreement to facilitate the protection of the states into a permission slip, turning the United States into the developed world’s country with the highest rate of firearm mortality and gun violence per capita. The United States has enough firearms to issue more than one firearm each to every woman, man, and child.

Two of the most consequential Supreme Court cases shaping the interpretation of the Second Amendment and gun ownership rights are District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), both decided by a majority of Republican Justices.

Before these two cases, the interpretation and application of the Second Amendment rested on the precedent set in United States v. Cruikshank (1876) and, a decade later, Presser v. Illinois (1886).

That changed under the Roberts Court in 2008.

Second Amendment – The Roberts Court

Two specific cases have fueled the contentious debate over the Second Amendment. Those cases are District of Columbia versus Heller and McDonnell v. City of Chicago. Justice Scalia wrote the decision in the first case, and Justice Alito wrote the decision in the latter.

After reading both cases, I’ve concluded that these decisions are acts of judicial subterfuge and malpractice. Scalia and Alito have employed every dishonest tactic possible to reach their conclusions: they deny/rewrite history, overinflate the importance of their sources, ignore/misinterpret precedents, and include declaratory statements throughout the decision.

The decisions in District of Columbia v. Heller and McDonald v. Chicago created a new constitutional right that never existed out of whole cloth. One glaring characteristic of the past twenty years of Republican led Supreme Court decisions is that they justify their decisions by cosplaying as historians, medical professionals, legislators, and activists, while spending very little time acting as jurists.

Justice Scalia supports his decision in Heller by claiming to be a grammarian, saying that the relationship between the prefatory clause ( A well-regulated Militia, being necessary to the securing of a free State) and the purpose of the statement is somehow subordinate to the operative clause(the right of the people to keep and bear arms, shall not be infringed), the method chosen to secure that purpose.

It mentions neither personal safety nor protection of the home or the individual. It focuses exclusively on securing a free State. If the principle of having every citizen armed to the teeth was so important, they could have just gone with the operative clause. He wants us to believe that the people who many believe were brilliant would write anything so convoluted to match Alito’s version of the Second Amendment.

Scalia then ignores the history surrounding the origin of the Bill of Rights, and the Second Amendment specifically. The Bill of Rights and the Second Amendment were the product of extortion by several states to ratify the Constitution, most prominently Virginia. Scalia goes on to say there was an “ancient” right of individuals to keep and bear arms; I laughed because the first image I had was of cavemen wielding their clubs. Was it that ancient?

The one thing Scalia gets right is that the motivation behind the creation of the Second Amendment was to restrict the Federal government’s ability to control militias. Still, he then discounts the Second Amendment’s drafting history, which he says has a dubious interpretive history. How convenient it is to eliminate that which likely refutes your arguments about the intentions of the Second Amendment. This is puzzling behavior from someone who swears to be a devout strict constructionist.

Scalia talks about the Second Amendment and proclaims that it codifies a pre-existing right. Still, that argument falls flat on its face if you acknowledge that the impetus of the Second Amendment was to be a restriction on the federal government and an acknowledgment that it was the States that had the sole authority for determining how arms would be regulated for the primary purpose of a militia. In essence, it was stating that the federal government could neither grant nor restrict that right. So basically, he claimed a right for the federal government that was never granted. It gave the federal government the power to infringe on a State’s authority in matters involving the bearing of arms.

Scalia and other Republican Justices have become notorious for swearing to the Senate that they will respect and uphold Supreme Court precedents, but then, at their first opportunity, display their ideological biases to overturn long-standing constitutional precedents. That was the case when they used several decisions to reverse-engineer a series of decisions granting an unfettered individual right to arms.

The Supreme Court’s decisions in Cruikshank and Presser served as the two constitutional pillars defining the Second Amendment. First, the Second Amendment restricted the federal government to prevent interference with state governments regulating their militias; second, it focused primarily on weapons used to protect the states through their militias.

These precedents were respected and adhered to by the Supreme Court for over a century until the Republican Justices, who, by the way, lied in their confirmation hearings about their dedication to and respect for precedents, decided to defecate on previous court decisions and manufacture a history that never existed.

Antonin Scalia led the first stage of assault. He claimed the right to bear arms for personal protection was enshrined in ancient history. He supported it with a 21-page grammatical diagram of the Second Amendment’s language, which is pathetic coming from a strict constructionist.

He then goes on to erase the history that matters most: the Second Amendment’s drafting history and the political history that influenced its enactment. He states, “The Second Amendment drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.” So that part is not so dubious? Scalia basically rummages through what was left on the “cutting room floor’ during the enactment of the Second Amendment to find support for his decision.

Scalia then says, look, various states have included personal ownership of arms for protection in their constitutions as evidence that the U.S. Constitution does the same. Contrary to his claims, this suggests that individual states, not the federal government, have the authority to determine who has the right to bear arms and under what conditions. These are two of the principles established in Cruikshank and Presser that he chose to misinterpret.

He then argues that because the Second Amendment doesn’t specifically refute the individual rights interpretation, it is endorsing the individual rights interpretation. Where did this guy get his law degree from? Oh, that’s right: Harvard. Scalia also puts an oversized degree of importance on amici briefs, treatises, and law articles that don’t possess contemporaneous relevance.

In a possible moment of clarity, Scalia said the Second Amendment right is not unlimited and that certain restrictions are constitutional. This did not affect later Supreme Court decisions that expanded Second Amendment protections.

Once Scalia ruled that the Second Amendment established an individual right to possess a firearm unconnected with service in the militia, it was only a matter of time before the Second Amendment right would be expanded. If Scalia opened the door, then Alito blew it off its hinges. In McDonald v. City of Chicago, Alito transformed an amendment created to restrict federal power into one that gave the federal government sovereignty over state governments.

How did he do this130 years after Cruikshank? He said that the Second Amendment should be incorporated selectively. Selective incorporation is a principle by which the Supreme Court can decide that a portion of the Bill of Rights applies to state and local governments. The Court applies it through the Due Process Clause of the Fourteenth Amendment. The Second Amendment was the sixth of six Amendments to become incorporated and, due to Alito and four other right-wing Justices, was fully incorporated.

The other incorporated Amendments protect civil liberties. In 2021, to add insult to injury, Clarence Thomas wrote the decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which claimed that the Second and Fourteenth Amendments protect an individual’s right to carry a concealed weapon outside of their home. To one-up his colleague, Alito wrote a decision in Wolford v. Lopez ruling that a state may not prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission—one erroneous Court decision after another. Heller (2008) was the patient zero of subsequent jurisprudential malfeasance.

Consequences

So where does that leave us? That leaves us with a Republican controlled Supreme Court with six politically and ideologically driven Justices who are more activists than jurists. It leaves us with a society infested with more than 400 million firearms and more lax controls on them. We are also left with 44,447 people killed. That is more deaths than those caused by car accidents. Injuries caused by guns are generally estimated to be twice the number of homicides caused by firearms. Since 2017, guns have been the leading cause of death for children between the ages of 10 and 17.

A report by The Commonwealth Fund found that “The economic cost of firearm violence: By some estimates, it cost the U.S. around $557 billion in 2022, with $2.8 billion spent on health care costs, mental health services, and emergency services. The largest proportion of this total was made up of costs related to quality-of-life, pain, and well-being lost by those injured or killed, and costs to families. Combined with billions in other losses, firearm deaths cost roughly $274,000 per victim, and each injury costs over $25,000 per patient, equaling an average cost of $1,700 per taxpayer annually.”

Let’s see how the United States ranks against its comparators, other rich nations. The United States’ gun ownership rate is 120.5 per 100 persons. The country with the next highest rate of gun ownership is the Falklands, with a rate of 62.1. Gun homicide rates in the United States are approximately 25 times higher than the average of other high-income countries. According to a study performed by World Population Review, the United States is the 47^th safest country globally. But firearm advocates will argue that it has very little to do with unfettered access to firearms.

The principle of firearm ownership being a fundamental right, a constitutional right for individuals, is built on a foundation of lies, distortions, and deceptions. I read Scalia’s decision several times, and I stand to be corrected; I did not find a single citation or mention that the reluctant “Father of the Bill of Rights,” James Madison, supported Scalia’s position that the Second Amendment intentionally supported an individual right to possess firearms for self-protection.

Historical records and accounts overwhelmingly establish that the States, and specific politicians like Patrick Henry, were singularly focused on keeping their militias to control the enslaved population and serve as a barrier against federal government intrusion.

One of the more egregious things Scalia did was totally ignore the precedents set by previous Supreme Courts. Scalia goes out of his way to diminish more than 130 years of jurisprudence by focusing on what previous Courts “did not say.” Instead of what they unequivocally decided, which was that the Second Amendment was enacted to protect states from federal intrusion; in other words, a restriction on authority, not a grant of authority.

Scalia and the other right-wing Justices instead created a paradigm that made gun ownership the equal of all the other Bill of Rights Amendments that centered on civil liberties. The McDonald v. City of Chicago and New York State Rifle & Pistol Association, Inc. v. Bruen cases, decided by Alito and Thomas, supercharged the District of Columbia v. Heller decision.

The 400 million firearms in the United States are owned by 31 to 32 percent of Americans. The ownership of an object that has a primary purpose of killing or maiming a living thing, something that could deprive a person of life, liberty, and justice, cause death and destruction, should not be a pillar of the nation’s founding document.

This lofty position in our democracy promotes a lethal arrogance where some people feel free to inflict death and pain on tens of thousands of people per year (including themselves). I never believed the Second Amendment protected an individual’s right to possess firearms. Still, it wasn’t until I attended law school and heard professors and students repeat the same word-salad justifications for supporting a constitutional right to bear arms as Scalia, Alito, and Thomas.

The object has become more important than the actual lives it ends, even when it comes to babies and children. I realized that we as a nation had lost our minds when the children and teachers at Sandy Hook were slayed with a military-style weapon, and we did nothing to address their deaths. This needs to end.

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