Well, for starters, America’s gun violence problem is unique. No other country experiences the mass shootings we do. So we’re doing something different from others that encourages it or at least makes it possible. How about lax gun laws?
In May 2022, a CNN columnist wrote (here), “This cycle of gun violence is sad, predictable and permanent. It is permanent because presidents lack power, while Capitol Hill is paralyzed by minority rule. And federal courts, though poised to give the power back to the people’s representatives on abortion, have routinely struck down state laws to reasonably curb gun access.”
Also in May 2022, a Vox article (here) argued Democrats’ focus on assault rifles is misdirected, because very few gun crimes are committed with rifles. The real problem, it said, is the Supreme Court’s decision in District of Columbia v. Heller, which “gave special constitutional protection to handguns.” Most gun murders result from arguments that escalate, which “makes small, easy-to-store, and easy-to-conceal weapons like handguns especially dangerous. And that’s why Heller’s special legal protections for handguns make America’s gun violence problem unsolvable.”
The Vox article notes that of the 10,258 reported gun murders in 2019, 6,368 were committed with handguns, only 364 were with a rifle, and just 73 by a mass shooter. (The rest are classified by the FBI as “firearm, type not stated.”) Based on this, Vox says, “f you only count gun murders where the type of firearm is known, about 90 percent of all such murders are committed with a handgun.”
In 1939, the Supreme Court said in United States v. Miller that “the ‘obvious purpose’ of the Second Amendment was to ‘render possible the effectiveness’ of militias. And thus the amendment must be ‘interpreted and applied with that end in view.'” That changed in 2008 when, for the first time, a majority of justices read the amendment to refer to an individual right to bear arms apart from “a well-regulated Militia.”
In fact, the purpose and meaning of the Second Amendment has never been obvious, as the history of its interpretation and application demonstrates. The Supreme Court’s interpretation has changed many times (read that history here), beginning more than a century before Miller, in politically-motivated decisions closely bound to the issues of the day. There’s nothing unusual about the court’s pivot in Heller.
(The “Miller” in United States v. Miller was a bank robber arrested for transporting a sawed-off shotgun across state lines; the Supreme Court found it inconvenient to rule that the Second Amendment conferred on people like him an individual right to bear arms in violation of a law enacted by Congress to protect the public.)
Heller, which is directly contrary to the ruling in Miller, “reinvented … what the Second Amendment is supposed to accomplish,” namely, an “inherent right of self-defense” belonging to individual citizens. Bang. There went any hope of stemming the tsunami of guns flooding America’s streets in an age when living on the edge of wilderness, hunting for food, and protecting communities against Indian marauders aren’t even a distant memory.
But the Heller court didn’t go all-in cowboy; it hedged its bets: “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Scalia wrote, or on “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” You can’t square these exceptions with any language in the amendment, so where did they come from?
The same place the Miller decision came from: The court found it inconvenient to take the blame for arming criminals and crazy people, or turning schools and city halls into Old West saloons. Even justices, despite their lifetime appointments, have a sense of political self-preservation.
So, what it boils down to is, throughout our history the Second Amendment meant whatever the Supreme Court wanted it to, and this varied depending on who the justices were. Republicans enter the picture because they’ve stacked the court with anti-gun control justices. There’s nothing new about any of this, and generations of Supreme Court justices have gotten away with bending the amendment to their political desires because of its vague wording.
This would seem to toss the ball in the Founding Fathers’ (specifically, James Madison’s) court, but Vox isn’t quite done yet. As they point out, “The Court’s current slate of justices appear to be more hostile to gun laws than any Supreme Court in American history.” Therefore, shouldn’t those justices, and the Republicans who pushed through their confirmations, bear responsibility for what they chose to do with the ambiguity Madison and the original ratifiers bestowed on them? Not to mention Republicans’ relentless opposition to gun legislation in Congress and state legislatures?
Should children have guns? You won’t find any language in the Second Amendment prohibiting felons and mentally ill people for having guns. The Supreme Court could uphold laws prohibiting children from having guns, too. The court can, and will, do whatever it likes with guns.
Neither Republicans nor the Supreme Court are innocent.
However, the court’s constantly-changing interpretation of the Second Amendment offers a ray of light at the end of the tunnel; to wit, Heller is no more permanent than Miller was. Every Supreme Court to date having bent the amendment to its own desires, certainly a future Supreme Court can do so, too.
In America, the will of the people is supreme; the language of the Second Amendment, as history shows, is flexible. And so are courts. All we have to do is elect the supermajorities needed to override the filibuster and pack the court. Maybe if voters get fed up with being shot at, and their kids being shot at school, they’ll do that.
Related story: There are so many guns in America, even crazy people can easily get them, see story here.
