A Strategy for Regaining the Initiative: Needed now more than ever
The June 2022 Supreme Court decision in NYRPA v Bruen has opened the flood gates to greater public proliferation of guns and rifles on the streets of the U.S. For their part, a number of states have pushed the Second Amendment to new levels of firearm availability and access, with public safety and law enforcement under increasing threat as a result.
In such circumstances, it is time for an even more urgent and concerted non-partisan effort on a number of fronts to re-frame the national discussion on and attitudes toward the Second Amendment. Failure to act with energy and imagination will leave the country in a more perilous situation, with looser open and concealed carry laws in more states clearly increasing the danger to the broader population.
The basic starting point: recognizing that fully 233 years have passed since the clumsily worded Second Amendment was approved as part of the 1791 Bill of Rights.
The Court’s decision in favor of the NYRPA plaintiffs, relying on the questionable ruling in Heller v District of Columbia (2008) as precedent with other prior stare decisis largely jettisoned, broadens the scope for concealed carry and represents a real and growing threat to public safety. The Court’s June 2022 ruling does nothing to strengthen requirements for background checks, training, mental health concerns and magazine capacities, all recognized as contributing factors to the increase in death and injury due to firearms in the United States.
Today’s effort should be made with full understanding of the incredible hurdles that face serious efforts at compromise and change. A substantial percentage (70 percent in a 2020 Gallup poll) of Americans defends private gun ownership, regardless of their view of the Second Amendment; a third of Americans own firearms, according to most surveys. Many gun owners are fearful that the government will act to confiscate their weapons and believe that their individual liberty and privacy will be severely constrained or attacked if the Second Amendment were to be changed to permit closer monitoring of the ownership and use of guns.
But national polls indicate that some 70 percent of the people welcome such common sense safety and security measures as greater background checks, red flag laws, limitations on magazine size and the need for training requirements.
Meanwhile, mass killings continue, with disconcerting recent events in Uvalde, Buffalo, Milwaukee, Indianapolis, Atlanta, Boulder, Las Vegas, Orlando, Sandy Hook etc. and a society expecting – and some accepting – the likelihood of more.
This is an all-hands moment in the wake of the NYRPA v Bruen decision and there are a number of key lines of action to undertake.
First and most generally, a non-partisan national debate must be energized to focus the country’s attention on the real impact and cost of the Second Amendment on life in the United States in this third decade of the 21st century. Creative thinking, public engagement and discussion, and prescient and energetic leadership are essential to focus and shape this debate.
Some possibilities:
o It is time for a broader communications and education effort to define and detail the extent to which the Second Amendment is costing lives, hurting the economy, and undercutting the nation’s political stability.
o Publicize the real cost in lives and threat to our public safety officers and demonstrate convincingly that the prevalence of weapons among the population, including assault weapons, directly threatens officers and undermines law enforcement effectiveness and thus trust among the larger population.
o Leading universities or consortia of leading universities should organize special conferences and symposia to bring prominent respected colonial history historians and legal scholars together to review the historical record of the First Congress in the drafting of the Bill of Rights and specifically the Second Amendment, with an active communications outreach program to publicize the discussion and conclusions and to highlight how the Amendment is arguably an irrelevant anachronism in the face of 21st century political, social and economic realities.
Along with this discussion it is essential to read the record of the Second Congress as it drafted the May 8, 1792 Militia law giving substance and form to the “well regulated” militia of the Second Amendment, which clearly described the “arms” of the thinking of the Founding Fathers, a “good musket or firelock” along with 24 cartridges which white citizen men were expected to bring at their own expense to their militia service.
Secondly, we need to address head on the archaic language and logic of the Second Amendment’s assertion that “A well regulated Militia, being necessary to the security of a free State…”.
o This phrase has no meaning or relevance in the third decade of the 21st century when the “security of a free state” depends not on a “well regulated militia” but rather on the nation’s global economic and political competitiveness, strong national defense institutions, and effective diplomacy in a very competitive and dangerous world, one with such new, emerging threats as cyber-warfare, global terrorism, nuclear proliferation, authoritarianism displacing democracies, climate change and pandemics.
o The notion of state militias, which was the Founding Fathers’ conceptual starting point, became irrelevant with the Civil War, when the southern state militias became the army of the Confederate States of America, and subsequently, with the establishment of the National Guard in 1903 under joint federal and state authority.
o It is time to push back energetically against polemical arguments defending the notion “shall not be infringed” while ignoring “A well regulated Militia, being necessary to the security of a free State”. Incredibly, the SCOTUS ruling in NYRPA v Bruen gave this element of the Amendment the barest reference, and, sadly, Justice Breyer’s dissent largely conceded the issue and failed to replay any of the clear and compelling arguments in the Stevens dissent in Heller v District of Columbia.
o The January 6, 2021 insurrection to block official election proceedings in the Congress is a telling example of the flawed thinking, corrosive ideology and destabilizing roles associated with American home grown “militias”.
o Shows of armed force by militias and citizens groups, notably in the capitols of Michigan and Virginia and in the Pacific Northwest, clearly demonstrate that unofficial militias represent a real danger and threat to the U.S. Constitution and democratic governance. There were organized elements of such militias participating in the January 6 insurrection and occupation of the Capitol.
o Proponents of civil uprisings should be challenged at every opportunity to explain themselves, their actions and logic relative to the Constitution which their actions implicitly attack.
Thirdly, and equally important, the public spotlight needs to falls brightly and incessantly on the palpably weak arguments advanced in NYRPA v Bruen by Justice Thomas and the incomplete and contradictory arguments made by Justice Scalia in the majority opinion of Heller vs District of Columbia. The rulings in both cases simply turn the text of the Second Amendment on its head.
The key point of Thomas’s majority opinion:
o “Individual self-defense is the ‘central component’ of the Second Amendment right”. Justice Thomas ignores the fact that the 27 words of the Second Amendment do not mention the concept of “self-defense” at all, but rather place the right to “keep and bear arms” firmly in the context of a “well organized militia”.
Key excerpts from Scalia’s majority opinion:
o “…(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
…” “We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”
o “…(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, nor Presser v. Illinois, refutes the individual-rights interpretation. United States v. Miller, does not limit the right to keep and bear arms to militia purposes, ut rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. …“
o “… 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. …”
o “…Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 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.”
Fourth, our law enforcement and political leaders need to be challenged to justify their positions on an amendment that underlies some 20,000 murders, 24,000 suicides, the wounding of thousands each year and an unending series of mass murders perpetrated by weapons of war.
o It is remarkable that police organizations around the country are not doing more publicly to support and to advocate for reasonable firearm safety and security measures that would protect their officers and the general population, and which would help lower societal tensions in many situations.
o Rather, they are arming themselves with military grade weapons to confront citizens similarly armed, and, as in the case of Uvalde, even having such weapons does not overcome the fear of engaging a heavily armed perpetrator.
o They see no role or need to challenge the population’s right to arm with weapons unrelated to self-defense, hunting, or sport shooting or to buy multi-round (100, 33 and so on) magazines.
o These leaders should be pressed constantly to explain their decisions and vision for making America a safer and more prosperous place and be pressed to acknowledge their responsibility for the impact of the prevalence of arms fostered by the Second Amendment on the safety and security of their own officers.
o Police leaders’ concerns related to “defunding” need to be addressed seriously and separated from the issues of police misconduct and reform of police methods, recruiting and training, with both separated from the issue of civilian firepower vis a vis the police.
Lastly, we need a non-partisan public education campaign to stress continually that the U.S. Constitution is a living document and has been amended 27 times. The misguided rote defense of the Second Amendment by some poorly informed members of Congress is evidence of the bankruptcy and shallowness of their arguments in defense of the Second Amendment as written.
o It fully in the letter and the spirit of the U.S. Constitution to consider amendments, or even amendments to amendments; the Constitution sets out a clear process on how to proceed.
o The case of Prohibition is a guiding example. The 18th amendment in 1919 prohibited “intoxicating liquors”; the 21st amendment in 1933 repealed the 18th.
o The 27th amendment enacted in 1992 (preventing Senators and Representatives from increasing their own pay) is actually left-over unfinished business from the negotiation which produced the original 1791 ten amendment Bill of Rights, of which the role of “arms” is addressed in the Second.
As was the case a century ago with prohibition, discussion of adapting the Constitution to the country’s needs today (in this case, the Second Amendment) could not be more American.