A Right to Gun Ownership?

orlando-shooting-memorialAs people continue to reflect on the horrors of the mass shooting last week in Orlando, FL, it is important to consider the U.S. policy on firearms that enables such easy access to weapons of mass destruction.

In the wake of the Orlando shooting, columnist Doug Saunders wrote an outstanding article for Canada’s national newspaper, the Globe and Mail, entitled, “How U.S. gun ownership became a ‘right,’ and why it isn’t.”

It is the best piece of journalism on this subject that I have seen, and contains some surprising facts that are rarely reported in the American media. Portions of article follow:

The American gun crisis, and the attitudes and laws that make it possible, are very new. The broad idea of a right to own firearms, along with the phenomenon of mass shootings, did not exist a generation ago; the legal basis for this right did not exist a decade ago.

Until 2002, every U.S. president and government had declared that the Constitution’s Second Amendment did not provide any individual right for ordinary citizens to own firearms. Rather, it meant what its text clearly states: that firearms shall be held by “the People” – a collective, not individual right – insofar as they are in the service of “a well-regulated militia.” …

“For 218 years,” legal scholar Michael Waldman writes in his book The Second Amendment: A Biography, “judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard,” and did not contain any individual right to own firearms.

Warren_e_burger_photoThe U.S. Supreme Court had never, until 2008, suggested even once that there was any such right. Warren Burger, the arch-conservative Supreme Court justice appointed by Richard Nixon, in an interview in 1991 described the then-new idea of an individual right to bear arms as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” …

NRA-logo-300x298For most of the 20th century, the National Rifle Association fought hard for gun control and strict limits on the availability of weapons. … [Later, however,] the gun-rights movement emerged from the anti-government fringes in the 1960s and ’70s, took over the NRA and raised huge sums to impose its agenda on U.S. lawmakers. And it crept, rather quickly, into mainstream U.S. thought through the Republican Party.
John_AshcroftIn 2002, John Ashcroft, previously known for his strong stances against racial desegregation and birth control, became the first federal attorney-general to proclaim that individuals should be able to own guns.

Then in 2008, in a reversal of all its precedents and a bizarre overturning of mainstream legal and historical scholarship, the Supreme Court ruled that there is indeed an individual right to own weapons (though one with limits).

That court was loaded with seven conservative judges appointed by Republican Presidents: John Roberts, Anthony Kennedy, David Souter, John Paul Stevens, Clarence Thomas, Samuel Alito, and Antonin Scalia.

A Controversial Supreme Court Decision

A bit of additional detail on this Supreme Court ruling is in order: The case the ruled on was District of Columbia v Heller. It concerned a D.C. policeman who, under a restrictive gun control law passed in Washington D.C. in 1976, was denied permission to register a handgun he wished to keep at home. The issue focused on whether or not the government can restrict the possession of firearms in light of the Second Amendment of the U.S. Constitution, which states,

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.

The attorney for the defence made the traditional argument that the Second Amendment applied specifically to the right to bear arms as part of a militia. Heller’s attorney, on the other hand, argued against that interpretation, insisting that the D.C. handgun ban was unconstitutional because it unnecessarily infringed upon an individual’s right to bear arms.

Antonin_Scalia_Official_SCOTUS_PortraitJustice Antonin Scalia wrote of the Supreme Court’s opinion in its 5 to 4 decision in favour of Heller, stating that in the court’s judgment individual possession of firearms is a constitutional right under the Second Amendment. This was a significant departure from previous interpretations of the Second Amendment.

Scalia’s judgment was challenged in a dissenting opinion by Justice John Paul Stevens who argued that the Second Amendment did not protect the use of firearms for non-military purposes. Stevens claimed that,

In reaching their decision “the Majority had set aside normal standards of interpretation in its decision.

[This is seen as a criticism of Scalia’s controversial use of “originalism” in interpreting constitutional documents.] As part of his dissenting view, Stevens specifically charged that,

The Majority had inappropriately ignored the first part of the Amendment: ‘A well regulated Militia.”

troiani-lexington-greenSince the right to bear arms as described in the Second Amendment is specifically within the context of a “well regulated Militia” providing for “the security of a free State,” it is difficult to see how this amendment applies to the private, non-military use of firearms. However Justice Scalia’s commitment to “originalism” allowed him to detach the second phrase of the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed” from the first phrase describing “a well regulated Militia.” In the view of many, this fundamentally distorted the reading and meaning of this article.

Justice Scalia’s ideological commitment to “originalism” was a radical departure from previous standards of jurisprudence. As described by Justin Driver, writing for The Guardian,

Rather than searching for the “original intent” of constitutional Framers, Scalia insisted, originalists should search for the Constitution’s “original meaning” for the public. This shift toward “original meaning” represented a shrewd intervention, suggesting that the Framers’ own understandings of constitutional text were less important than what ordinary citizens would have understood that text to mean.

It is easy to see the fallacy of this “originalist” argument. It is as if the content of a lecture by a respected scholar should be judged, not by that person’s careful research, noted expertise, and deliberate reflection, but rather by the average listener’s personal impression of what was said. Ridiculous!

When the highest court in the land tosses out any consideration of the “original intent” of the framers of the constitution, and relies instead on popular interpretation, the nation is in serious trouble.

Saunder’s article, however, ends on a hopeful note, saying.

The individual right to bear arms is only a few years old, and based on nothing; its fall could be as quick as its rise. Once the Supreme Court has two more appointments by Democratic presidents, it will eventually provide a correct interpretation of the amendment, the interpretation Americans knew and respected for 217 years.

Let us all hope so.

Credits: Militiamen painting by Don Troiani

About Edward Clayton
Edward Clayton grew up in the US but has lived in Canada for the last 4 decades. He is a long time peace activist and committed to issues of social justice and good government. He reports on Canadian, American, and global politics from a Canadian perspective.

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