The Second Amendment wasn’t meant as a death warrant

Second Amendment

Like rapid fire bullets from an AK 47, American gun carnage is set to repeat. Random shooters can fell anyone, anywhere: at church, at school, while shopping for bargains at the Dollar General.

Mass shootings occur with such frequency that Americans seem inured to a brutal reality where the unstable and aggrieved can buy a gun as easily as a bag of chips.

Alleged ‘originalists’ on today’s Supreme Court, who claim to hew to the original meaning of the Constitution, did an about face on the Second Amendment. (Disclaimer, my federal litigation practice focuses on First and 14th Amendments; I’ve never tried a Second Amendment case.)

As Chief Justice Warren Burger observed:

The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime… The real purpose of the Second Amendment was to ensure that state armies, the militia, would be maintained for the defense of the state… The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

This view, shared by many Constitutional law scholars, holds that an un-bought and un-lobbied interpretation of the Second Amendment flows squarely from its historical context: In 1775, King George declared that the American colonies were in a state of rebellion. Eager to defeat, tax and control them while extracting their natural resources, the king sent bayonet-armed soldiers to occupy the 13 colonies. The British army quartered itself in the colonists’ meager homes, slept in their beds, burned their firewood, ate their scarce food, and confiscated their guns so they couldn’t fight back.

England disarmed the colonists to frustrate their efforts to organize a militia, which handicapped the rebels and, initially, the Continental Army. When the fighting was finally over, revolutionary war leaders met at the first Constitutional Convention in 1787 to draft their new governing laws.

General George Washington, fresh from the fighting, didn’t just attend the Constitutional convention, he was the convention president. As written and adopted in 1791, the Second Amendment reflected the inequity of weaponry felt during the British occupation: “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.”

Nowhere does the original Second Amendment state that citizens have the right to bear arms against each other, rather, the right to bear arms was described as a matter of collective defense.

After ratification, the Second Amendment was in quiet effect for nearly 200 years, and various gun regulations were adopted without conflict or controversy. Trouble started brewing in the 1970s when the National Rife Association began lobbying to increase the production, sale, and distribution of firearms.

After decades of effort, the NRA’s lobby paid off in 2008, when the Supreme Court declared for the first time that an individual right to gun ownership under the Second Amendment was separate from the ‘militia clause’ in the same sentence, effectively erasing those terms and their historical context altogether.

In 2022, Justice Clarence Thomas made matters worse in the shameful Bruen decision, which overturned New York’s common sense concealed carry law. Relying on specious justification, Thomas essentially wrote that an individual’s interest in carrying a concealed gun outweighed the government’s interest in reducing gun deaths. It was an outrageous but predictable result from a justice who has accepted gifts of immense value from right wing political donors.

Democratic politicians like to claim that Democratic-led states have lower murder rates than Republican-led states, which is true, but only because political affiliations drive gun policies.

Arranging gun mortality rates according to controlling party affiliation, the CDC reports that twice the number of people are murdered per capita in red states than blue, even though red states tend to have more rural populations. In 2021, there were 6 murders per 100,000 residents in Democratic-led states, compared to 14 in Republican-led states.

Indiana’s statistics follow suit. Indiana’s per capita firearm deaths are 25% higher than the national rate, while Indiana’s gun law strength is ranked below the national average. Although Indiana’s Extreme Risk Law allows family members and law enforcement to petition a court to temporarily block someone in crisis from accessing guns, Indiana is lacking in most other common sense gun regulations involving permit requirements, background checks, secure storage, red flag, and high capacity limitations.

Although the latest racist shooting took place in Jacksonville, Florida, Indiana has also had its share of mass shootings — at a foot court, at a middle school, in a mall, at a FedEx facility, and at private parties. Indiana, like Florida, is also governed by a Republican supermajority.

The NRA, like the fossil fuel industry, has lobbied extensively for laws that protect their profits at the expense of human life, and a tainted Supreme Court has enabled them. It’s a good thing education in red states is also lacking, or people might start to see a deadly pattern.

Sabrina Haake is a Chicago attorney and Gary resident. She writes the Substack newsletter The Haake Take.

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