Congress and courts are still ignoring the full text of the Amendment, as penned by the Founders, to prevent any and all gun safety legislation...
By Ernest A. Canning on 4/19/2021, 9:35am PT  

Nearly nine years ago, we published an article called "High Cost of Willfully Misinterpreting the 2nd Amendment." It highlighted the compelling U.S. Supreme Court dissents written by the late Justice John Paul Stevens and Justice Stephen Breyer in District of Columbia v. Heller (2008) --- a 5 - 4 decision in which the Court's right-wing majority overruled a 1939 SCOTUS precedent by ruling, for the first time in our nation's history, that the Second Amendment created an individual's right to possess a firearm unconnected to service in a State militia.

Our coverage was written against the backdrop of that year's midnight massacre where one individual, sporting body armor and an AR-15 assault rifle with a high-capacity, 100-round drum magazine capable of firing between 50-60 rounds/minute, murdered 16 people and wounded 58 inside an Aurora, CO movie theater. The 2012 article was also written against the backdrop of the large number of mass shootings within the U.S. that could, at that time, be sharply contrasted with what had transpired in Australia.

Following what became known as the 1996 Port Arthur Massacre in Australia --- where a lone gunman, sporting an AR-15, murdered 35 people --- the country enacted strict gun laws that included a gun buy-back program. The result: Australia did not experience a single mass shooting over the next 20 years.

Over these past nine years in this country, Congressional Republicans, who, in 2004, refused to extend the successful 1994 Assault Weapons Ban, continued to oppose any and all forms of gun safety legislation. Not coincidentally, the carnage wrought by the radical assertion of an unfettered individual "right" to bear arms helped lead to more than 600 mass shootings in the U.S. over the course of the 366 leap year days in 2020, according to a The New York Times database. There were, according to Wikipedia's Mass Shooting Tracker project, 150 U.S. mass shootings, producing 148 deaths while wounding 485, over the first 106 days in 2021.

With that in mind, as the unrelenting death toll mounts in the U.S., revisiting our earlier analysis is once again apropos...

Ignoring text, history and precedent

In his dissent in Heller, Justice John Paul Stevens observed:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses.

The question before the Court in Heller was not new. It was squarely faced by the U.S. Supreme Court in U.S. v. Miller (1939), which upheld a conviction under the National Firearms Act of 1934 because there was no evidence to demonstrate that the use of a sawed-off shotgun bore a "reasonable relationship to the preservation or efficacy of a well regulated militia."

The Second Amendment states [emphasis added]: "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."

Stevens excoriated the majority for treating the preamble of the Second Amendment relating to a "well regulated militia" as if it were mere surplusage. "It cannot be presumed that any clause in the constitution is intended to be without effect." (Marbury v. Madison (1803).)

The first two clauses, "well regulated Militia" and "security of a free State" inform the meaning of the words "the people" in the third clause, Stevens proclaimed.

Stevens insisted that neither historical evidence nor the context of the language, taken as a whole, supports the conclusion that the Second Amendment was intended to secure to civilians the right to "keep and bear" arms for personal use. Indeed, he observed, quoting from the Oxford English dictionary, the words "bear arms" means "to serve as a soldier, do military service, fight."

Justice Breyer, in a separate dissent, added weight to the argument that the Second Amendment was never intended to prevent legislatures from passing gun control legislation "of great public importance, namely, saving lives, preventing injury, and reducing crime." He pointed out that, at the time the Second Amendment was passed, Boston, Philadelphia and New York had all placed restrictions on firing guns within city limits and had regulated "the storage of gunpowder, a necessary component of an operational fire arm."

Balancing rights

Even if we assume that the Court's right wing majority in Heller was correct --- that the framers of the 2nd Amendment intended to create an individual right to bear arms --- that doesn't mean that such a right outweighs the right of every citizen to go about their daily lawful activities free from the risk that their lives will be snuffed out by a mass murderer.

Our Courts have long recognized the need to balance conflicting rights. For example, the First Amendment guarantees the right to free speech, but that doesn't give you a right to falsely yell "fire" in a crowded theater or to "incite" an imminent violent act.

It is one thing to argue that the Second Amendment includes an individual right to bear arms. But it's patently absurd to suggest that an individual "right" to bear arms prevents passage of laws designed to protect the lives of the unarmed against the carnage wrought by mass murders.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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