“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.”
– The Second Amendment to the U.S. Constitution
After the Las Vegas shooting of hundreds of people — the largest mass killing in the U.S. in decades — Congress must finally summon the wisdom and courage and take preventive legislative action to impose common-sense restrictions on the sale of guns, especially the semi-automatic ones used in that massacre.
Lawmakers should do this after a thorough debate and Congressional hearings during which experts testify on the psychological, sociological, and economic causes and consequences of this unbridled availability of firearms. Our legislators, Senators Cornyn and Cruz and Representative Cuellar, should join their colleagues to reach consensus and then together draft and pass legislation to help reduce the carnage caused by those who shamelessly and repeatedly use military-type firearms to kill innocent people.
In recent years, a mistaken notion has taken hold: that the Second Amendment is somehow sacred, unlimited, and more important than other rights guaranteed by the 1791 Bill of Rights; virtually all the others have limits but the Second has not yet been interpreted to have any. The National Rifle Association and other pro-gun activists have been zealously furthering the view that the Amendment is somehow sacrosanct. The NRA rewards like-minded legislators with large campaign contributions to ensure their re-election and their continued obedience to the Association’s hard line stance against any firearm regulation. How many more gun-related deaths will there be before the Senate and House enact common sense laws to help prevent more?
In its 2007-2008 term, the Supreme Court agreed to hear and decide another Second Amendment case, District of Columbia et al v. Heller. This involved a District of Columbia policeman who filed suit after the District refused his application to register a handgun to keep at home. The lower court dismissed his complaint, but the U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that the Second Amendment protects an individual right to possess firearms. In its 150+ page opinion in Heller, the Supreme Court undertook a comprehensive review of earlier Second Amendment cases and legislation, and at the end of its 2007-08 term ruled in favor of an individual right to bear arms unconnected to a “militia.”
Justice Scalia wrote the opinion for the five-justice majority. The Court looked at the language of its prefatory clause: A well regulated Militia, being necessary to the security of a free State and then its “operative clause”: the right of the people to keep and bear Arms shall not be infringed as well as some early state constitutions drafted shortly before the Amendment. The majority read the Amendment to refer to an individual right rather than a collective one which could be exercised only through participation in a militia. It also noted that nowhere else in the Constitution does a right attributed to the people refer to anything other than an individual right.
The dissenting justices Stevens, Souter, Ginsburg, and Breyer vigorously disagreed with the majority’s decision and reasoning. The dissenters read the Amendment to refer only to a right to bear arms in the context of a well-regulated militia. The City of Chicago, the American Academy of Pediatrics, the American Bar Association, the American Jewish Committee, and the Brady Center to Prevent Gun Violence, among others, filed amici curiae (“friends of the court”) briefs in support of the dissent’s view that the Second Amendment did not confer an individual right to keep and bear arms.
Justices Stevens and Breyer both wrote opinions on behalf of the four justices in the minority. Justice Stevens acknowledged that the Amendment “does encompass the right to use weapons for certain military purposes” but that it did not unequivocally protect the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense. When the Amendment was adopted in 1791, there was a strong desire to protect the right of the people of the 14 States to maintain a militia. A “well-regulated militia” was very important at that time because a serious concern had been raised during the ratification of the Constitution several years before that Congressional power to disarm state militias posed a threat to the sovereignty of the various states. This was a matter of significant worry then because of the experience of the English in the 17th century. The right to bear arms had been codified in the English Bill of Rights in 1688 because of concern about the danger that tyrants could eliminate a militia, not by banning the militia itself but by taking the peoples’ arms away, and then replace it with a standing army that could be used to oppress political opponents. This fear of standing armies spilled into late 18th century America. For instance, New Hampshire writings of that time discussed the “dangers of a standing army” as did the Virginia Ratifying Convention. The Virginians stated: “a well-regulated militia composed of … people trained to arms is the proper, natural, and safe defense of a free state.” In peacetime, these militias were preferred over standing armies, which were considered dangerous and to be avoided.
The Heller dissent believed that neither the Amendment’s actual text nor its drafters’ prior discussions showed “the slightest interest in limiting any legislature’s authority to regulate private civilian use of firearms.” In United States v. Miller 307 U.S. 174 (1939), the Supreme Court had interpreted the Amendment to protect the right to keep and bear arms for certain military purposes, but not to interfere with the Legislature’s power to regulate the nonmilitary use and ownership of weapons. The Heller dissent considered this reading by the Court to be the one most natural and faithful to the history of the Amendment’s adoption. Moreover, Justice Stevens noted judges over the decades had relied on the Miller interpretation, and the Supreme Court had itself reaffirmed it in1980 in Lewis v. United States.
Since then no new evidence had surfaced to support the view that the Amendment intended to reduce the power of Congress to regulate the civilian use of weapons. The dissent finally argued that respect for stare decisis — the legal doctrine of precedent that makes it necessary for courts to follow earlier judicial decisions when the same points arise again on a given issue — would prevent most judges from endorsing this “dramatic upheaval in the law.”
Justice Breyer’s dissent included statistics and conclusions on gun-related violence from 1976 Congressional Hearings by the House Committee on the District of Columbia. One conclusion that emerged from lengthy research and these extensive public hearings was that “[t]he easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years;” during this time there were approximately “25,000 gun-deaths…each year” and an additional 200,000 gun-related injuries. Of these 25,000 deaths each year, about 3,000 were accidental, and a quarter of these were deaths of children under 14.
The Committee statistics also showed that “[f]or every intruder stopped by a homeowner with a firearm, there are four gun-related accidents within the home.” Justice Breyer also quoted statistics from 1993 to 1997, which showed that firearm-related deaths rose to 180,533 and firearm-related injuries rose to 411,800.
The Heller majority conceded the accuracy of these figures but disagreed with the predictive judgment that a handgun ban would help solve the crime situation that these figures showed. Justice Breyer acknowledged that while legislature’s predictive judgments may be controversial, they have not been shown to be incorrect. Moreover, judges’ sole obligation in cases reviewing a legislature’s “predictive judgments” is making sure that in formulating its judgments, the legislature has drawn reasonable inferences based on substantial evidence.
It is inherently difficult to ferret out the intent and purpose of the drafters of the Constitution and Bill of Rights because we live some 225 years later and in 50 states with a population 75 times larger than that of America’s 14 states in 1791. These and other differences make it extremely difficult to accurately discern the drafters’ original intent of these documents. Whereas original intent is important, it should not be controlling, because as times have changed, a society’s needs and priorities have also. Ultimately our lawmakers – with input from us, their constituents — must intelligently determine what the best legislative course of action should be to address the problems we have now. Then they should work hard to study the problem of proliferation of guns, collect relevant and dependable information about it from all sources, and then enact necessary laws in a bipartisan way. Being citizen members of the same nation should be adequate ties to bind us to act by contacting our legislators and asking that they curtail the use of semi-automatic and automatic firearms in civilian life.
We have seen through the blood of Las Vegas the havoc and damage such weapons can cause to innocent persons. Rather than parsing through documents in a search for the intention of 27 words written in 1791, we, as a nation, should look clearly at the problems that plague our society now and enact laws that will address, and eventually diminish, these unnecessary deaths and injuries that blight our society.
Even if it wanted and intended to do so, Congress would not have had time to enact legislation to curtail the civilian use of automatic and semi-automatic weapons that would have prevented the tragedy of the First Baptist Church in Sutherland Springs, Texas on Sunday, November 5. Even the most pessimistic among us couldn’t have thought we would have another of these mass shootings so soon after Las Vegas. But another mass shooting occurred and 26 lives were taken.
It’s important that we take some action before these massacres become so frequent and commonplace that we become inured to them, and our sense of helplessness deepens. In addition to controlling the use of military type weapons, there should be laws and regulations that mandate that known identities of disturbed or violent persons be conveyed to gun sellers, in order to prevent the sale of semi-automatic weapons to such persons, and handguns as well.
In the case of the Sutherland Springs killer, the Air Force apparently failed to convey such information to gun sellers, who, had they known, could have refused to sell weapons to him.
A fallacy in comments by the President and others in the wake of these mass killings is the notion that it is “too soon” to discuss ways to prevent them. In fact, what better way is there to honor the memory of those killed than to take legislative and other thoughtful action to prevent further massacres like Sandy Hook School, the Pulse nightclub in Florida, the concert in Las Vegas, and the Sutherland Springs Church?