It was my intent to follow up my “Sam The Sham - Part I” post with the second part, and that will come soon. But as so often happens, life intrudes.
On May 24 we witnessed another school shooting. This time, in Uvalde Texas, 19 elementary students and two teachers were senselessly gunned down by an 18 year old with a handgun and a rifle. He also reportedly wore body armor.
There have been over 948 school shootings since the slaughter at Sandy Hook Elementary School in Newtown Connecticut in December of 2012. Let that sink in.
Since the Columbine shooting in 1999, over 300,000 students have been on campus during a school shooting. Let that sink in too.
Consider these facts: there are over 400 million firearms in the United States; 44% of households have at least one gun, 56% of households have no gun; 40 million guns were legally purchased in 2020, an increase of 28% over 2019 when 28 million guns were legally purchased: and regarding ownership by gun type, 82% of owners have handguns, 68% of owners have rifles, and 58% of owners have shotguns.
According the Centers for Disease Control, 79% of all homicides involved a gun compared to only 4% in Great Britain. Perhaps the following will put this in stark relief:
Unless Specified, all percentages per 100,000 people
Intentional Homicides: Great Britain - 1.7 The US - 4.7, four times higher
Murder Rate: Great Britain - 722 The US - 12, 996, 18 times higher
Murder rate per million: Great Britain - 11.68 The US - 42.01, four times higher
On the day after the assassination of Martin Luther King Jr., shot by a man with a rifle, Robert Kennedy spoke to a business group in Cleveland Ohio. He began his remarks as follows:
"This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity to speak briefly to you about this mindless menace of violence in America which again stains our land and every one of our lives."
Once more, on May 24, we were all stained by the mindless menace of violence visited on elementary school kids, their teachers, and the families of the deceased and those who witnessed that violence.
As soul crushing as these killings are to anyone who truly cares about life, what is nearly as crushing are the remarks by those with the opportunity to slow the rate of senseless killings in our country. The bodies of the kids weren't identified when Texas' Junior Senator in an interview claimed that democrats and the "left" only wanted to take gun rights away from "law-biding citizens." The Texas Attorney General stated in an interview that it was time to "harden" schools to prevent these attacks. But the prize for the most debased comment goes to Texas Lt. Governor Dan Patrick who said it was time to arm teachers. I was a classroom teacher for several years before becoming an attorney and I can tell you that is a galactically stupid idea.
Yup, the recycled Wayne LaPierre trope that the remedy to a bad guy with a gun is a good guy with a gun. That worked out so well in Uvalde yesterday. Only a Border Patrol officer with previous special operations training managed to end the threat. That's what it took to eliminate the threat from an 18 year old kid, special ops.
This is Groundhog Day run amok. As Fannie Lou Hammer said in 1964, "I'm sick and tired of being sick and tired."
It isn't my purpose here to suggest approaches to solve the problem of gun violence in America. There are numerous policy approaches that will get the job done. All our "leaders" need is the spine to buck the various lobbies and get something done to protect and safeguard to public, especially those most vulnerable.
However, at the heart of the opposition to virtually any gun reform or regulation is the Second Amendment. And the gun lobby scored major victories in 2008 and 2010. In 2008, in District of Columbia v. Heller, Justice Scalia found that the Second Amendment was intended to ensure the private ownership of firearms for protection. Two years later, in 2010, in McDonald v. City of Chicago, Justice Alito found that the Second Amendment applied to the states and municipalities.
To be clear about what we're talking about, here's the Second Amendment in its entirety:
"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."
I contend that Heller was built on a house of cards, leaving McDonald to exist on a pile of quicksand.
A word about Scalia's approach to divining the meaning of the Constitution. There are basically two ways to view and apply the Constitution to questions before the Court, one is the plain text (aka called "Originalism" of which there are various branches of interpretation) and one that sees the Constitution evolving and applies the principles contained in the Constitution to resolve issues before the Court.
Scalia (and Alito currently for that matter) was an "originalist." In fact, at a program at Brooklyn Law School that I had the opportunity to attend, he said he was more a textualist - the Constitution's meaning only is found from a plain reading of the words contained in it. If someone wants the meaning of the Constitution to be changed, then there's always the amendment process.
So with that in mind, he read the Second Amendment and found the first four words to be prefatory and determined that the Amendment provided a private right to keep and bear arms. Oh, if someone was pressed into militia service that would be ok, but the primary function of the Amendment was preserve the private right to own a firearm.
In order to jump over the militia component, he has to ignore it. But what about firearms? The Amendment just says "arms" so couldn't it also provide a private right to knives, bows and arrows, axes and the like? Or maybe a big club to vanquish a threatening enemy?
Scalia says, basically, yeah but... what the drafters of the amendment really meant was firearms. And how does he know this? Does he consult the records of the text and deliberations on the proposed Amendment by the First Congress? Does he consult any surviving correspondence to see what the participants thought about the text? Nope, he consults a dictionary. But not just any dictionary, but dictionaries known to be in use at the time of the drafting of the Amendment (the Library of Congress must have loved digging these out!).
He painstakingly (and painfully) takes us through an exercise of Lexicology. He discovers that the 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour [sic] of defence.” Scalia finds that "Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” He concludes that the word "arms" was not limited to weapons of military utility. They could use clubs, bows and arrows, etc. to defeat an enemy. However, that said, he cites a 1700s Thesaurus to determine that firearms is included in "arms."
He then looks at the words "keep arms" as conferring a private right, citing Blackstone for support. Without further belaboring the point, Scalia and the majority concluded that while there was a military component to the Amendment its principle thrust was to confer a private right to posses firearms. In his words, "'Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else." (Emphasis in the original text)
Like a lot of his rulings, it's a nice story but it just ain't true. Scalia does all he can to not look at the debates over the Second Amendment, and that's where the truth of the matter lies. In fact, the wording of the "militia" and the "free state" are not prefatory clauses but operative, leaving the "keep and bear arms" as the subordinate clause. How do we know? Because the drafters tell us.
The original proposals looked pretty much as follows:
"A well regulated militia, composed of a body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
This just a tad different than how Scalia might describe it. In fact, this Amendment was specifically drafted because the members of the First Congress knew and lived with the effects of a standing army in their midst. To that point, Aedanus Burke of South Carolina tried to insert language as follows: "A standing army of regular troops in the time of peace, is dangerous to public liberty, and shall not be supported in time of peace, except by the consent of two-thirds of each house of the legislature."
As further evidence that this was intended to protect militias, the language about religious "scruples" could have been intended to protect Little Billy's right to have a rifle for shooting little bunnies on the farm. All but the last of the debates focused on the keeping of local and state militias to obviate any need for a standing army.
And any argument about wordsmithing "arms" and seeing "militia" as prefatory to the individual right is just pure fantasy. But it was a good try by Scalia to demonstrate his facility with words while obfuscating the main point of the Second Amendment.
As for Alito (aka "Sam the Sham" in case you missed Part I), he takes Heller and runs with it in McDonald to determine that this newly discovered private right to keep firearms applies to the states and not just the federal government. I won't belabor his "reasoning" except to say that as aside from looking at Heller and basically saying, "yeah, what he said," Alito once again fractures history (and good sense) by employing the Reconstruction Act of 1866 to support his contention that the Second Amendment applied to the states. Seriously.
The law has been fractured allowing laws such as those in Texas that require no background checks; no registration of firearms after any sale and purchase; the ability to possess machine guns, suppressors, and short-barreled firearms; and no ban on "assault weapons" such as the AR-15 that was used in Uvalde.
Gun violence is an epidemic in the United States. To enshrine it on the alter of Constitutional legitimacy weakens and will ultimately erode civil society to the point where it can't function. Heller and McDonald are abominations on Constitutional order and must be over turned when the Court has sufficient Justices who will actually work to determine what the Constitution means and not what a few Justices would like it to mean to arrive at their desired result.
In 1949, Justice Robert Jackson dissented in Terminiello v. Chicago, a free speech case where he argued that the majority erred when they struck down an ordinance that would have banned speech that might bring about conditions of civil unrest or create a disturbance. The majority thought the ordinance was too much an imposition on free political speech but Jackson saw the possibility that such disturbance was a threat to public safety and order, and he wrote:
"There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
By ignoring the practical realities of their decisions, and promoting their own doctrinaire views, Scalia and Alito have gone a long way to making the Constitution into a suicide pact - as we again witnessed yesterday in Uvalde.
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