By Ernest A. Canning on 7/30/2012, 1:20pm PT  

Guest blogged by Ernest A. Canning

The horror that played out during the recent midnight massacre inside a Century theater in Aurora, CO is but the latest example of the danger posed to our safety and our very lives by the radical right's expansive interpretation of the Second Amendment.

On June 28, 2008, that view --- that the Second Amendment protects an individual's right to possess a firearm unconnected to service in a state militia --- became the law of the land, courtesy of the U.S. Supreme Court's hard right quintet's decision in District of Columbia v. Heller ("Heller") --- a 5-4 decision that ignored precedent, history and basic rules of constitutional interpretation.

Heller not only elevated the profits of the domestic small arms industry above the ability of government to protect our safety, our general welfare, our domestic tranquility and our very lives, but provided a disturbing new context to the eerily prescient 1991 warning provided by Sen. Edward Kennedy (D-MA) when he likened the confirmation of Clarence Thomas as an Associate Justice of the Supreme Court to a game of "Russian Roulette"...

Ignoring text, history and precedent

In his powerful 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 that would 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 Stephen 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."

The Rev. Jesse Jackson recently added one more salient point. "We hiding behind the 2nd Amendment," he said, "to justify weapons that the writers of the Constitution never imagined."

For citizens, like those inside the crowded Aurora theater, there is a deadly difference between someone armed with an AR-15 assault rifle with a high-capacity, 100-round drum magazine capable of firing between 50-60 rounds/minute, even in semi-automatic mode, and what citizens in the 18th Century had to face in the form of a single-shot flintlock. If Holmes had been armed with an 18th Century flintlock, the unarmed but angry crowd could have subdued him long before he could load a second shot.

Dangerous delusion

"If we take our guns away," caller "George" from Huntington Beach asked Brad Friedman during the July 25 airing of The BradCast on Pacifica Radio’s Los Angeles affiliate, KPFK, "isn’t the police still going to have machine guns?"

The BRAD BLOG has not shied away from harsh criticism of the fully militarized, and, at times, brutal crackdown on peaceful Occupy protesters by ostensibly civilian law enforcement.

Imagine, however, what would have happened during that militarized crackdown if some fool in the crowd opened fire on the police with an AR-15. Actually, you don't have to imagine. Just look at what is taking place today in Syria where thousands of civilians, caught in the cross-fire, are being slaughtered.

The notion that individuals --- even those armed to the teeth like sociopath James Holmes --- could fend off the power of an increasingly militarized civilian law enforcement, let alone the overwhelming military power of the United States government, reflects an exceedingly dangerous and counterproductive, paranoid delusion.

It is a delusion which one can find at the center of the 250% increase in heavily-armed, right wing extremist "patriot" groups. However, as the July 25 calls to The BradCast revealed, it is also a delusion which holds sway over many who identify with the left.

Democracy is achieved by ballots, not bullets. "The right to vote," MN Supreme Court Justice Paul Anderson recently observed, "is an institutional way to peacefully revolt." That institutional form of revolt can be reinforced by peaceful, non-violent civil disobedience, even to the point of engaging in a general strike.

But violence, whether committed at home or abroad, is not the answer.

"They make a desolation," the ancient Roman historian Tacitus, observed while commenting on the folly of imperial conquest, "and call it peace."

Follow the money

From the National Rifle Association (NRA) and the rest of the gun lobby, we hear the mantra, "guns don't kill people, people kill people."

But if we want to understand the reality behind the lobbying and the right wing quintet on the Supreme Court --- be it in favor of "corporate free speech" in the infamous Citizens United decision, or the tortured construction of the Second Amendment by these self-described "strict constructionists" in Heller --- we need only follow the money.

In 2009, U.S. small arms manufacturers sold more than 14 million guns --- "more than 21 of the world's standing armies combined."

Not only has the U.S. small arms industry experienced tremendous growth, but, courtesy of the effective gun lobby and the radical Supreme Court quintet, its sales have veered towards more sophisticated (and expensive) weaponry.

According to the Violence Policy Center, that growth has entailed expansion of civilian sales of "sophisticated battlefield weapons" --- many finding their way into the killing fields of the Mexican drug cartels, including "the Barrett 50 caliber anti-armor sniper rifle...semiautomatic versions of military assault weapons, such as AR-15 and AK-47 assault rifle models," and weapons capable of penetrating body armor.

For those unfamiliar with the power of a 50 caliber weapon, suffice it to state that when the author served in a mechanized infantry unit in Vietnam, he witnessed smaller trees being mowed down by the 50 caliber machine guns mounted atop our armored personnel carriers.

To this, Bill Moyers adds:

Every year there are 30,000 gun deaths and perhaps as many as 300,000 gun-related assaults in the U.S. Firearm violence costs our country as much as $100 billion a year. Toys are regulated with greater care and safety concerns than guns.

Wikipedia reports that, in the UK, "Firearms are tightly controlled by law, and there is little political debate and no strong public opposition to control."

The benefits to public safety are rather striking. As revealed by statistics from each country, "In the United Kingdom in 2009 there were 0.07 recorded intentional homicides committed with a firearm per 100,000 inhabitants; for comparison, the figure for the United States was 3.0, about 40 times higher."

The U.S., Michael Moore asserts, "is responsible for over 80% of all the gun deaths in the 23 richest countries combined."

The Aurora Massacre is precisely what we can expect when the profits of arms manufacturers supplant the core purpose of government to protect the very lives of its citizens. Holmes was a 24-year old graduate student. He had no criminal history; no psychiatric history --- nothing that would have prevented him from obtaining the weapons or the more than 6,000 rounds of ammunition he purchased on-line in the weeks leading to the assault.

At the time of the assault, Holmes was wearing tactical gear, including a gas mask, an assault vest, body armor, magazine pouches and a knife. He had in his possession a Remington 8-gage shotgun, two 40-caliber Glock handguns, and an AR-15 assault rifle with a drum magazine capable of firing between 50-60 rounds/minute even in semi-automatic mode. All of this was legally acquired. Under Colorado law, even if they were already loaded, his transport of those weapons inside his vehicle was perfectly legal.

In short, Colorado law enforcement was not in a position to arrest Holmes until the moment he opened fire. How insane is that?

A petition to reinstate the ban on assault rifles, as supported by Ronald Reagan, George HW Bush and Bill Clinton, can be signed, here.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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