By Randall Upton
Uvalde tells Biden to “do something.” This was the front-page headline of the Memorial Day edition of the Times-Call. The accompanying story reported that when President Biden left a church service in Uvalde, Texas, to meet privately with persons who lost family members in the Robb Elementary School carnage on May 24, people in the crowd outside the church shouted: “Do something.” He said, “We will.”
Immediately following the shooting all sides of the national debate on gun rights hunkered down with hardened positions on the Second Amendment to the U.S. Constitution. Without pausing to be respectively silent, the Republican Party and NRA sympathizers bleated out that the Second Amendment gives individuals an absolute right to own whatever weapons are available.
At the same time, liberals decried the amendment as a relic that pertains only to the ability of states to support a militia and to allow individuals to keep and bear arms as a way of ensuring the efficacy of their militia that were in evidence in the late 1780s.
Perhaps the biggest impediment to the U.S. finding a solution to firearms violence is the political debate between those who advocate there is an unlimited right to the possession of guns of all types under the Second Amendment to the Constitution, known as the “individual right theory”, and those who believe the Second Amendment was designed to facilitate States to maintain their militias, known as the “collective right theory.”
The theory that the Second Amendment confers an “individual right” is a recent one, having been made by gun-rights activists and promoted by the NRA over the past 40 years.
The Second Amendment of the United States Constitution reads: “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.” For most of American history, the Second Amendment did not protect an individual’s right to bear arms.
In 1939, the U.S. Supreme Court considered the matter of these conflicting theories in United States v. Miller. There, the court endorsed a collective rights approach. The court determined that gun regulations will stand unless a weapon “has some reasonable relationship to the preservation or efficiency of a well regulated militia. …” The court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military. This interpretation of the meaning of the Second Amendment prevailed for the next three decades.
This legal precedent for the militia-based understanding stood for nearly 70 years until 2008 when the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller.
The plaintiff in Heller challenged the constitutionality of a Washington, D.C., law that prohibited the possession of handguns. In a 5-4 decision, the court struck down the D.C. handgun ban and proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms. The court carved out Miller as an exception to this general rule.
The Supreme Court has moved significantly away from its “collective rights” approach since Heller in its decisions. A decision is expected shortly from the Supreme Court in the case of New York State Rifle & Pistol Association v. Bruen that will likely further the individual rights theory for the issuance of a handgun license.
In summary, the two separate interpretations as to the meaning of the Second Amendment, and not even including a third interpretation that the Second Amendment was adopted to enable Southern States to keep militia that were needed to protect against uprisings of enslaved Africans.
It is possible to discuss and find answers to gun violence in the U.S. But first, we must quit concentrating on conflicting interpretations of the Second Amendment. Solutions can be found without believing nothing can be done because there is a constitutional right to unfettered access to guns based on language put in place in the Bill of Rights in 1791. A recent Twitter feed sums up things very well:
“I don’t know, man, maybe some dudes who owned people and would be mystified by the sight of a dishwasher weren’t right about everything in perpetuity.”
Randall Upton is a management professional who has extensive experience with governmental, profit and non-profit organizations in the US, Europe, Asia and Australasia. A graduate of Georgetown University Law School, he has been a resident of Longmont for eight years during which he has served in positions in education, government and non-profits.