This, from an article by By Kevin Murphy (Reuters) on the latest gun legislation (this time it was in Kansas):
“Kansas residents will be allowed to carry concealed weapons in the state without training or a permit starting in July under a bill signed into law on Thursday by Governor Sam Brownback. Brownback, a Republican, said the new law will protect the rights of gun owners, while opponents said the measure poses safety risks. ‘Responsible gun ownership – for protection and sport – is a right inherent in our Constitution,’ Brownback said in a statement.”
How did we get here? How did we sink so low, become so ignorant, end up with our laws on firearms so twisted. The governor surely knows that the Constitution gives Americans no such “inherent right.” The 2nd Amendment is the most peculiar in the Bill of Rights. In case you’ve forgotten what it actually says, here’s the full text:
“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.”
That’s it. Sorry, Brownback, no mention of “protection” or “sport.” In fact, no mention of individual rights. “People,” last time I checked, was a plural noun. A “well-regulated militia,” according to most constitutional scholars, referenced the rights of states to defend themselves (against whom was left unspecified).
This interpretation is known as the “collective right approach” in that it gives the right to bear arms only to a collective, in this case a state-run militia. Most authorities on the constitution who take this approach conclude that the Framers’ intention was to allow the government to control individual ownership of firearms. Why else would the words “well-regulated militia” be there.
In 1939, in Miller v. United States the SCOTUS agreed with this interpretation concluding that the “militia” in the wording restricted the rights to units of the military and concluded that the National Firearms Act of 1934 restricting movement of arms by individuals was constitutional.
In the decades since Miller the proliferation of guns took place unabated largely because no one was paying attention and there were few legal challenges to Miller that might sharpen just how it might be interpreted. It’s worth noting that the gun in Miller was a sawed-off shotgun, a weapon with no real function other than to kill someone. It’s useless in hunting, hard to see it as a defensive device, difficult to load and heavy.
In 2007, in District of Columbia v Heller, the courts took the remarkable step of determining by a single vote (5-4 with the usual suspects lined up on the usual sides) that the collective right approach was incorrect and that the 2nd Amendment was designed to give the right to bear arms to individuals. The reasoning was, in a word, tortured. Cornell University’s Law School website has an excellent article on it. Interestingly, the justices ducked Miller by excluding it on the grounds that sawed-off shotguns can be regulated because, well, you know, they’re only good for one thing and can’t be used for law-abiding purposes.
In 2010 the Court went even further in McDonald v. Chicago and essentially lifted all of the city’s restrictions on gun ownership. You can guess the vote and who landed on what side. In this ruling the court did something unusual, and new. It turned to the 14th Amendment for support and in so doing concluded that McDonald applied widely and not just in Chicago. The 14th was one of the amendments passed after the Civil War and was designed primarily to provide equal rights and protection to ex-slaves. It has many clauses and has been used for a host of somewhat surprising decisions (Roe v Wade for example). The vaguely amusing part was that while more than one justice cited the 14th as the basis for extending McDonald to the states but they used different clauses.
Since then states have been passing, willy-nilly, laws freeing up the purchase, use and concealment of guns, loosening regulations on ownership, permitting an ever-wider variety and type of weapon — and all the while the death toll rises. Last year over 33,000 Americans died from gun shots. As many have noted, guns are the only commodity bought and sold in the country that is not subject to some kind of regulation.
You can’t even buy a cuddly toy that hasn’t been subjected to some regulations for health and safety but you can pick up any gun and, in Brownback’s Kansas, carry it anywhere, any way, open-carry or concealed, with no screening, no permit, no background checks, no training.
How did we come to this?