By Ron Grossman
Chicago Tribune
Survivors of the massacre at a Parkland, Fla., high school have held vigils, angrily chanting “No more guns!” They’ve demanded that state legislators outlaw the AR-15, the kind of rapid-fire weapon with which 17 of their classmates and staff members were killed.
Other students added their voices to the anti-gun-violence chorus. In Washington, D.C., they marched on the U.S. Capitol, shouting: “Our blood, your hands!”
Similar expressions of pain and frustration, outrage and determination, have followed previous school shootings. But up until now, they have been drowned out by three little words: the Second Amendment.
Their Latin equivalent is “veto.” By proclaiming that word, an ancient Roman official called the Tribune could halt debate in the Senate if he felt Rome’s legislature was headed in an unacceptable direction.
Now it’s pretty much the same with us. Invoking the Second Amendment effectively ends even modest proposals for gun control.
The knock-out power rests on the assumption that Americans’ right to keep a gun for their personal safety is embedded in the Second Amendment. Yet if that is so, the Founding Fathers must have dug a really deep hole to house that entitlement.
Because for 220 years, no one uncovered it.
The Second Amendment went into effect with the ratification of the U.S. Constitution in 1788. It only gained a stranglehold over gun-control efforts in 2008. That year, by a 5 to 4 vote, the U.S. Supreme Court struck down Washington, D.C.’s gun regulations.
The court’s majority ruled that Washington’s law infringed on residents’ right of self-defense — a right guaranteed by the Second Amendment, according to the justices.
That decision required a bit of legal gymnastics, since the term “self-defense” doesn’t appear in the Second Amendment. Its writers tied gun ownership to “a well regulated militia being necessary to the security of a free state.”
In fact, the Supreme Court used that militia phrasing to support gun-control laws, long before it decided that the words meant that Washington’s gun-control law had to go.
In the 1930s, a well-known bank robber claimed his Second Amendment rights had been violated by a federal regulation requiring that sawed-off shotguns be registered. The law had been enacted in response to Prohibition-era gang wars.
The Supreme Court rejected the fellow’s argument, saying it couldn’t see how a “shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia.”
The court’s flip-flop on gun control in 2008 wasn’t unique. Such reversals are usually explained as in line with an evolving body of jurisprudence, or some such explanation. But that leaves me with a vexing question about the judiciary:
You mean it took them 220 years to figure out that the Founding Fathers meant to say what they didn’t say?
I’m more comfortable with what the great humorist Will Rogers once observed: “The Supreme Court reads the election returns.” Crime rates soared in the run-up to the overturning of Washington’s firearms regulations. Politicians and the public demanded something be done, and so the court did something. Still, that posed an issue that is with us still: Does the right of self-defense entitle someone to own an AR-15?
The question was akin to the issue of cut-off shotguns, and again the court was wary.
Former Justice Antonin Scalia, who wrote the decision enshrining the Second Amendment, noted an important exception: The “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
In the years since, Scalia’s exception has been forgotten, for all practical purposes. Gun-owners’ right to possess not just handguns and hunting rifles but military-style weapons remains an article of faith for many conservatives and a few liberals. The National Rifle Association preaches an apocalyptic vision of the government out to take away our guns en route to taking away our liberties.
Wary of the NRA, politicians are afraid to ban the AR-15.
Its availability is still protected by the right of self-defense. But does anyone really believe that’s why the suspect in the Parkland, Fla., massacre wanted one? Or the shooter who murdered 28 students and staff members at Sandy Hook Elementary School in Newton, Conn.? Or the shooters who took a sawed-off shotgun and a semi-automatic handgun into Columbine High School in Colorado, and killed 12 students and a teacher?
How many more students will weep over murdered classmates before opponents and supporters of gun controls get beyond splitting hairs over what the Second Amendment says, or might have said, or should have said. The starting point for a more fruitful discussion of the issue is obvious. Just recall what Justice Scalia said about “dangerous and unusual weapons.”
And he wasn’t some dreamy-eyed liberal, but a conservative icon — an unflinching champion of the Second Amendment.
