In 2008, the Supreme Court of the United States struck down a handgun law brought by a resident of the District of Columbia against the federal enclave that prevented him from keeping a handgun in his home. The court’s opinion — that the law, which banned handguns and required long arms to be kept disassembled, was unconstitutional — has been widely regarded as the final word on how the Second Amendment would be interpreted.
It’s this ruling that explains in part why one has to look hard and long for a politician to be heard speaking out against the availability of guns in the wake of the latest massacre — a mass shooting in a Colorado movie theater that ended 13 lives if one counts the miscarriage of an unborn child over the weekend.
President Obama ultimately mumbled something about assault weapons, which even Scalia et al gymnastically ruled in 2008 were not protected by the Second Amendment. To be sure, across the spectrum, politicians and their minstrel pundits seemed to trip over themselves to assure us all that this bloodshed would in no way result in any abridgment of the constitutional right to keep and bear arms.
Their timing was poor. In an age when our elected leaders seem to relish the opportunity to assault each other with one half-truth after another, their fawning about the right of gun ownership even as Aurora officials in the hours just after the shooting were trying to clarify whether the death toll stood at 12 or 14 made of them a chorus line of undertakers.
Hot on its heels came that old saw, “Criminalize guns and only criminals will have guns,” which it should be noted is only ever uttered after shootings such as this one when what had heretofore been a law-abiding citizen snaps and goes on an indiscriminate rampage against random innocents or, as was the case in two separate incidents over the weekend, one in Pennsylvania another in Boston, two fathers gun down their own families at the prospect of their dissolution — and is never spoken following an actual incident among criminals on any given night in any given major American city.
But the 2008 ruling produced no real change of opinion in the minds of most Americans; gun ownership is widely supported. Indeed in the wake of the shooting in 2007 that left 32 dead at Virginia Tech, many guns rights advocates argued for the right to carry firearms on college campuses and in other public places.
I’m in that camp that says the justices in the majority — in their ruling on Heller and in their subsequent ruling in 2010 that dealt with the Second Amendment’s applicability to the states — got it wrong, so wrong in fact that the logic they employ to at times tease apart, at times unite, the amendment’s prefatory clause (“A well-regulated militia, being necessary to the security of a free state…”) from its operative clause (“…the right of the people to keep and bear arms shall not be infringed.”) is as back bending as Batman across the knee of Bane.
In both opinions, the majority subscribe to the notion, not evident in the language of the Second Amendment itself, that gun ownership is not connected to service in a militia — it’s an individual right, but then the justices twist themselves into a knot to re-unite the first clause to the second in order to justify restrictions on military-style weapons, clearly my first choice to use as a member of a militia.
A dissenting opinion by Justice Stephen Breyer called into question the amendment’s application on the regulation of civilian firearms, and he seems to appreciate better than the majority that the Second Amendment likely was speaking about individuals as they unite as part of the formation of “well-regulated” unit, the interest of which would be the common defense, last heard about in the preamble, and was not intended to govern individual or recreational gun ownership.
What the majority did seems to be what it often argues against — finding a federal solution that trumps the right of the people organized into residents of a jurisdiction or state to make their own determinations. What the court’s ruling about gun ownership showed more than anything else is that the Supreme Court, try as it might, is as successful at rising above politics as the rest of us. The Right loves a good federal solution as much as the Left.
But taking away the right of a jurisdiction to make a law regulating gun ownership strikes me as flying in the face of liberty as much as making a law, and using the Second Amendment to so disabuse a jurisdiction the right to write one, when, as Breyer noted, no such right was enunciated, seems equally liberty-less.
Here’s an idea: repeal the Second Amendment. Allow jurisdictions to write and uphold their own laws about private gun ownership, and maybe gradually we’ll come upon a real federal solution that doesn’t involve misreading the Bill of Rights — many good ones have been proposed already.
It’ll never happen — there are 300 million Americans and 200 million firearms — but suggesting it is no crime either.
— Robert Snyder is the managing editor of the Spirit of Jefferson. The opinions expressed in this column are his own and do not necessarily reflect the editorial position of the newspaper.