“[If the US Supreme Court rejects a NY law against carrying firearms in public, that “would jeopardize the firearms restrictions that all states and the federal government have adopted to protect the public in sensitive places where people congregate — settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools.”
New York State Attorney General, Letitia James
From the time it was implemented in 1791 until Antonin Scalia announced the ruling in the 2008 Supreme Court case of Heller vs District of Columbia, there were no cases and no supporting statutes suggesting that the Second Amendment (in the Bill of Rights) remotely stood for a ubiquitous and fundamental right for US citizens to own firearms. In the well over two centuries since that amendment had been enacted, no one thought that is what a constitutional amendment that said on its face that it was about a “well regulated militia” stood for. Pretending to be an “originalist” – those who adhere to the original intention of the drafters of a constitution provision – Scalia was instead a fairly radical right-wing revisionist/activist. Heller seriously expanded the Second Amendment, holding that while there might be some reasonable limits (left for future determination) on civilian ownership of weapons, gun ownership is a fundamental right of all American citizens. That “militia” reference was simply ignored.
This post-Revolutionary War amendment was based on the understanding that America and its government had been and would continue to be protected by citizen soldiers, mostly organized at a state level – the original meaning of “militia” in this context (today’s state National Guard is comparable). Even in peacetime, those citizen soldiers needed to stand at the ready to serve their nation in event of attack. That is why the Constitution protected their right to “bear arms” without fear that governments would abridge that right and leave them unprepared. Pure and simple. British soldiers were part of a very long-standing governmental military; their muskets and flintlocks were completely owned and controlled by their rather formal army. American citizen soldiers wanted clarity that they could keep their weapons, which the Second Amendment provided. And that was all the Amendment stood for.
The erosion of the true and obvious meaning of the Second Amendment began in the 1970s, when the National Rifle Association (the NRA), at the time noted for its promotion of gun safety, created a separate entity paid by gunmakers to lobby for a more open and generic right for civilians to have guns. Gunmakers noted that steel guns did not deteriorate if moderately cared for and that civilian consumers generally did not replace their older guns with updated weapons. With the Vietnam War over, small arms contracts with the military were also subsiding. These arms manufacturers were facing huge losses and even bankruptcy. The mission for the NRA: to create a ubiquitous right for gun ownership including a whole new market for semiautomatic civilian assault rifles. They wanted a whole new social acceptance of gun ownership as a right.
The NRA recruited members under its new umbrella policy that the Second Amendment was really just a general right to bear arms, without any reference to any “militia.” Slogans like “the only way to stop a bad guy with a gun is a good guy with a gun” became gospel, even though no one figured out how to identify a “good guy” within a violent confrontation or how to explain why statistically out of every 30 civilian gun fatalities, only one is found to be legally “justifiable.”
The NRA was wildly successful. There are currently 17 states that have laws that limit their local law enforcement officers from cooperating with federal agencies in enforcing federal gun laws. Missouri just passed the most extreme version of this legal approach, its Second Amendment Preservation Act, one that forbids local Missouri agencies from cooperating with federal officers on federal gun laws.
The statute reads in relevant part: "All federal… laws… and regulations… that infringe on the people's right to keep and bear arms as guaranteed by the Second Amendment to the [U.S.] Constitution… and the Constitution of Missouri… shall be… rejected by this state… and shall not be enforced by this state." The fine for a state or local agency violating this prohibition is $50,000. This from a state with double the national murder rate and one that even allows individuals convicted of a misdemeanor for domestic violence to own firearms. Many Missouri officers are no longer sending bullets to the federal ATF for analysis, even when they have no local forensic alternative.
There are more than a few state law enforcement officers who are not very happy with the statute. Neither is the federal government. “Since 2017, the FBI has identified 744 people in Missouri convicted of a domestic violence misdemeanor who then broke federal law when they tried to buy a gun. According to the ATF, local law enforcement was key to investigating these cases on the ground in Missouri. If those same officers helped the ATF with cases like that today, they would be breaking state law.” CBS, 60 Minutes, November 7th. Is this constitutional? Most believe this law will find its way to a very conservative Supreme Court. We are likely to see how that court deals with states attempting reasonable gun control in the immediate future.
The reconfigured conservative Trump-dominated Supreme Court is about to rule in case of New York State Rifle and Pistol Association v. Kevin Bruen, a case that may result in vastly expanded rights to carry firearms in public. In doing so, the Court must address a key issue that, until now, has been left unanswered in the Second Amendment debate: Are there any limits to the type of firearm that can be carried outside of the home? New York law prohibits carrying a handgun openly but allows residents to get a license to carry a concealed firearm if they can demonstrate a requirement that goes beyond a mere desire for self-protection. Critics maintain that is an impossible and unconstitutional standard. The federal trial and appellate courts upheld the law.
As Bloomberg News (11/2) states: “The National Rifle Association threw its support behind former President Donald Trump’s three U.S. Supreme Court nominees. It’s about to see whether that bet pays off.” On November 3rd, oral arguments before the Court took two hours. “Many of the court's conservative justices appeared skeptical of New York-style statutes that subject the constitutional right to bear arms to the discretion of a government official. At the same time, several justices raised concerns about public safety if those restrictions were rolled back too far.
Some hints about how the Court might rule came from observations and questions during oral argument: “Most of the justices said people who live in ‘high-crime areas’ and fear for their safety should be allowed to carry a gun for self-defense. And they said this applies equally to people who live in cities as well as in rural areas… ‘Think about people who work late at night in Manhattan,’ said Justice Samuel A. Alito Jr. ‘It might be somebody who cleans offices. It might be a doorman at an apartment. It might be a nurse or an orderly [or] somebody who washes dishes’ who is ‘scared to death’ to head home. ‘How is it consistent with the core right to self-defense’ to deny that person the right to have a gun with them? he asked.” David Savage, writing for the November 3rd Los Angeles Times. Should huge, crowded cities should get ready for many more guns, which would then be legal? A “core right to self-defense” that perhaps even justifies an unpermitted concealed gun? Huh?
The Court seems completely ready to expand Heller, a holding itself based on a flawed premise. In that case, Scalia conveniently skipped over why the United States, having just won the Revolutionary War, decided to pass the Second Amendment. Those “well regulated militia” words were legally inconvenient, so Scalia decided to find another excuse to make gun ownership a fundamental right. Instead of examining the actual reason for the amendment or addressing those specific “militia” words, Scalia instead chose to use England’s very different history with guns instead. And even that exploration distorted what the British actually did.
Savage, writing for the November 2nd LA Times, explains how Scalia simply ignored the American reality: “Until [Heller], the 2nd Amendment had been interpreted by the court as applying to the states’ right to establish a ‘well-regulated militia,’ rather than to an individual’s right to own guns… But Scalia, who died in 2016, successfully argued for interpreting the Constitution based on what he viewed as the original understanding of its terms. He said the 2nd Amendment ‘codifies a preexisting right’ that was brought from England to the American colonies… ‘By the time of the founding of this country,’ he wrote…, ‘the right to have arms had become fundamental for English subjects.’” I might note that this is hardly the law in the UK today or was even then. And it is contrary to what the framers of the Bill of Rights actually intended.
Will the Trump Court continue with Scalia’s “look at British history but ignore the actual American intention” binge? This case is a test of both what “originalism” means and exactly how far the Court is willing to stretch an already strained Second Amendment. In fact, as Savage notes, some prominent “historians recently told the court that even by using Scalia’s rationale of relying on the understood gun rights of old England, the court should conclude there is no right to carry weapons in public.
“They said subjects in England had no ‘right to carry firearms or other dangerous weapons in public based on a generic interest in self-defense. For centuries, both English and American law have restricted individuals’ right to publicly carry arms — especially in populated places and especially in the absence of a special need for self-defense — in order to preserve the public order and public peace.
“Beginning in the late 1200s, kings had issued proclamations prohibiting being armed when traveling in public or entering the city of London, the group noted… Saul Cornell, a historian at Fordham University, is among the leading skeptics of a broad right to arms coming from England to this country… ‘They are inventing a historical tradition, not discovering one,’ he said of the gun rights advocates. ‘There are very few English historians who believe there is or ever was a broad fundamental right to travel armed wherever you want.’
“Brown University historian Tim Harris grew up in London and earned his degrees at Cambridge. He, too, finds it ‘bizarre’ that Americans would look to England as a source of gun rights… He noted the Game Acts of 1671 and 1693 restricted firearms to the landed elite who owned a substantial amount of property and were subject to poaching… ‘In my view, the English legal precedents have been misunderstood and misapplied in order to try to support a more expansive interpretation of the 2nd Amendment,’ he said.”
Indeed, as the current term of the Court reconsiders individual rights in Roe vs Wade and New York State Rifle and Pistol Association v. Kevin Bruen, the conservative majority seem to want the Court to become its own constitutional convention, a high-level legislative body far above Congress… dramatically ignoring the checks and balances of the three purportedly separate branches of our government: legislative, judicial and executive.
I’m Peter Dekom, and while the Court is likely willing to accept some limits on gun ownership, the twisted Heller interpretation of the Second Amendment is likely to continue to be distorted and expanded.
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