It’s that time of year. Peace on
Earth. Goodwill to All Men. (Why not women? Thanks are due in part to Thomas
Jefferson. Your Declaration of Independence, holding equality for all men must
go down well with the feminine gender!) It will soon be time for gifts. So, I
have asked myself, what might the Supreme Court give to the American people?
Maybe kicking out for all time the endless objections to Obamacare? Perhaps
exercising some common sense to restrain political campaign finance? Presently,
any individual or corporation or trade union can give as much as they decide to
Political Action Committees.
So far, these gifts are absent.
However, those of us opposed to lax gun laws were given a present last week when
the Supremes ignored an opportunity to loosen these laws even more by defying
members and supporters of the National Riflemen’s Association. The Court
declined to review the prohibition by some cities and states on retention in
the home of automatic and semi-automatic, high-capacity assault weapons. These
are the kind of weapons used in many of the nation’s most deadly mass shootings
this year. This decision in Friedman v. Highland Park will be very
disappointing for gun rights advocates, especially the NRA, who were unable to
persuade most members of the Court to amplify and extend its 2008 decision in District
of Columbia v. Heller that the Second Amendment gives the right for an
individual to keep any weapon in his or her home.
Two Justices, Clarence Thomas and
Antonin Scalia, were unable to persuade their seven colleagues to review the law.
Both Justices criticized lower court decisions that have allowed jurisdictions
to impose what Thomas called “categorical bans on firearms that millions of
Americans commonly own for lawful purposes.” Their argument on ground that the
current law “flouts the Court’s Second Amendment jurisprudence” was firmly
rejected.
Maybe
it is time for the Court time to reconsider the Second Amendment as a whole. Let
me review its history. The Amendment is merely one sentence: “A well-regulated militia, being
necessary for the security of a free state, the right of the people to keep and
bear arms, shall not be infringed.” Constitutional experts debate the bizarre comma
placements, trying to parse the various clauses. The debate often gets heated.
Only academics would worry about the Amendment’s punctuation, not the practical
effect of its current application.
The
Amendment resulted from political tumult surrounding the 1787 Constitution,
which was agreed in private by a group of mostly wealthy white men who had
experienced chaos and mob violence of the Revolution and who feared the
consequences of a weak central authority. After the Constitution was rejected,
the Framers produced a set of Amendments to shift power into the hands of the
states and away from central government.
The
U.S. Supreme Court did not rule that the Second Amendment guarantees an
individual’s right to own a gun until the Heller
case struck down the law banning handguns in the home. In fact,
every other time the court had always ruled against the proposition. The
answers for the turnaround are not found in law books or theory.
The
NRA’s long crusade to bring its interpretation of the Constitution into the
mainstream teaches a different lesson. Constitutional change is often less the
product of public argument than political chicanery. The pro-gun argument may
have started with academic logic but the NRA targeted both public opinion and
shifted the organs of government by funding many elected politicians from both
main Parties. By the time the issue reached the Supreme Court, the new
proposition fell on willing ears of the right-wing Justices.
Warren
Burger was Chief Justice of the Supreme Court until 1960. He was a Nixon
appointee and a conservative. He was opposed to gay rights but supported busing
to help reduce the tensions of racial segregation. In 1990, when he had retired
from the Bench, Burger described the idea that the Second Amendment gives an
unfettered individual right to gun ownership as “a fraud on the American
public.” These words were not said lightly. Burger was mindful that the
Amendment had been written nearly 200 years previously when militias were the
product of a world of civic duty and governmental compulsion which is totally alien
to us today.
Let
me be clear. Burger was not saying that guns should be banned. His view was
that Americans had no unfettered right to ownership and keeping a gun in the
home required regulation. Take the analogy of the motor car, which can be a
lethal weapon. Should people have an unfettered right to drive? Of course not.
However, if they have a drivers licence and insurance, then they had the right
to drive unless and until disqualified for breaking the rules.
There
is not a single word in the Amendment about an individual’s right to a gun for
self-defence or recreation. The U.S. House of Representatives did not discuss
the matter when marking up the Bill of Rights. From 1793, gun rights and gun
control were seen as going hand in hand. Four times between 1876 and 1939, the
U.S. Supreme Court declined to rule the Amendment protected individual gun
ownership outside the context of a militia.
These
days, the NRA’s considerable influence at the ballot box and legislation is
patent. In 1994 after the Democrats lost their congressional majority, President
Clinton complained: “The NRA is the reason the Republicans control the House.” Their
financial support of successful candidates had won the day. Only last year, the
NRA supported and encouraged successful filibusters of the modest US Senate
proposal to tighten background-checks, despite massive public support for the
measure.
Even
if the current Court will not follow the opinion of Justice Burger, there is
still hope that the new Supremes who will be appointed by the next President
may swing the balance on the Court and give common sense interpretations of the
Second Amendment. Yes, I’m tilting at windmills. Should such a case come before
the Court, the arguments by the gun lobby will no doubt be backed up by threats
to any legislator who opposes the status quo that he or she will lose their seat
at the next election. However, the gun lobby enjoys freedom of speech, not
freedom to threaten. As it is Christmas, I can dream.
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