(By NCrissie B)
This week‘s series invites progressives to join President Obama and Democrats in advocating for sensible gun safety regulations. Today we look at gun industry supporters’ common claims about “rights,” and why they’re often very selective or plainly wrong about Second Amendment law. Tomorrow we’ll see data that disprove gun industry claims of “More guns, less crime.” Saturday we’ll conclude with words and phrases to emphasize, and to avoid, when discussing gun safety regulations with friends, neighbors, and colleagues.
Gun industry supporters cite the 2008 U.S. Supreme Court case of District of Columbia v. Heller, loudly and often, as reading the Second Amendment to find an individual right “to keep and bear Arms,” regardless of whether one participates in “a well regulated Militia.” And that’s true, as Justice Scalia concluded in writing for the majority:
And whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Yet Justice Scalia did not declare a blanket protection on on the right to own any conceivable weapon:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” [...] We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [...]
It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Yes, Heller announced an individual right “to keep and bear arms,” but that is not an unlimited right. The Second Amendment, Heller held, protects only arms “in common use” by “responsible citizens” for self-defense, hunting, and other lawful activities. And the Court recognizes the government’s authority to regulate even those weapons with bans on own possession by felons and the mentally ill, bans on carrying weapons in sensitive places like schools and public buildings, and imposing conditions and qualifications – read: licensing and background checks – on gun sales.
A ‘Right’ to Revolution?
Moreover, the specific weapons that Heller excludes – machineguns and other “weapons that are most useful in military service” – disproves any claim that the Second Amendment was written to guarantee a “right of revolution.” We have no such right, no more than did the Founders when they rebelled against Britain. They committed treason in doing so, and they knew it. As Benjamin Franklin famously said upon signing the Declaration of Independence, “We must all hang together, or assuredly we shall all hang separately.”
Franklin’s words are especially telling in light of right wing conspiracy monger Alex Jones’ outburst in an interview with CNN’s Piers Morgan:
Like many gun industry backers, Jones quotes China’s Mao Zedong, who wrote: “Political power grows out of the barrel of a gun.” (And like many gun industry backers, Jones omitted the first part of the quote: “Every Communist must grasp the truth.”) He then launches into an angry diatribe about the Second Amendment being written to ensure citizens can fight against “tyrannical government.”
But the plain fact is that the Second Amendment does not authorize Americans to take up arms against our government, as the Supreme Court held in Ex Parte Milligan:
It is proper to say, although Milligan’s trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by an established court and impartial jury, he deserved severe punishment.
Had Milligan and others like him been tried and convicted of treason in civilian courts, their convictions would have been upheld. Article III, Section 3 of the Constitution defines treason as “levying War against [the United States],” and men like Jones advocate exactly that when they encourage listeners to stock up on guns to fight against “government tyranny” …
… especially when you consider that Jones calls the Affordable Care Act “tyrannical.” By implication, Jones must believe armed marauders destroying a community health center funded by Obamacare would be protected by the Second Amendment. They would be fighting against “tyrannical government,” after all….
“I can’t think of a better advertisement for gun control than Alex Jones’ interview last night,” Morgan told CNN the next day.
Tags: Affordable Care Act, Alex Jones, Antonin Scalia, Article III Section 3, Benjamin Franklin, D.C. v. Heller, Declaration of Independence, District of Columbia v. Heller, Ex Parte Milligan, gun safety, ObamaCare, Piers Morgan, Second Amendment, Treason Clause, U.S. Constitution