ANOTHER REASON SUPREME COURT JUSTICES (AND ELECTIONS) MATTER
BLOOD SMEARED ALL OVER THEIR COLD DEAD HANDS
January 1-September 19, 2018.
Another mass shooting this morning. One last night. One last week.
Shopping for Body Parts, Woodcut, 11.5” x 18”, Richard J Van Wagoner, 1992, Courtesy of Van Wagoner Family Trust**
“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.”
To those who continue to embrace and perpetuate the bumper-sticker myth that the Second Amendment protects individual rights to keep and use arms for non-military purposes—other than self-defense in one’s own home—please read carefully District of Columbia v. Heller, a 2008 5-4 decision of the United States Supreme Court, including the footnotes. Then let’s talk. The decisions are below.
Justice Scalia’s Majority (5 Justices): https://www.law.cornell.edu/supct/pdf/07-290P.ZO
Justice Stevens’ Dissent (4 Justices): https://www.law.cornell.edu/supct/pdf/07-290P.ZD
Justice Breyer’s Dissent (4 Justices): https://www.law.cornell.edu/supct/pdf/07-290P.ZD1
As for the specific language of the Second Amendment, "[f]or most of the republic’s lifespan, from 1791 to 2008, those commas and clauses were debated by attorneys and senators, slave owners and freedmen, judges, Black Panthers, governors and lobbyists. For some, the militia was key; for others the right that shall not be infringed; for yet others, the question of states versus the federal government. For the most part, the supreme court stayed out it."
"'Americans have been thinking about the second amendment as an individual right for generations,' said Adam Winkler, a law professor at UCLA and author of Gunfight: The Battle over the Right to Bear Arms in America. 'You can find state supreme courts in the mid-1800s where judges say the second amendment protects an individual right.'"
“But for the 70 years or so before a supreme court decision in 2008, he said, “’the supreme court and federal courts held that it only applied in the context of militias, the right of states to protect themselves from federal interference”.’”
“In 2008, the supreme court decided the District of Columbia v Heller, 5-4 , overturning a handgun ban in the city. The conservative justice Antonin Scalia wrote the opinion in narrow but unprecedented terms: for the first time in the country’s history, the supreme court explicitly affirmed an individual’s right to keep a weapon at home for self-defense. . . .”
“There’s a mythology here that the supreme court has said something about the second amendment that it hasn’t . . . . I think most Americans don’t like reading the footnotes.”
Parenthetically, in order to conclude that the Constitution purports to prohibit a legislature from regulating an individual from keeping a weapon at home for self-defense—an argument the far-right justice obviously championed—Scalia flagrantly betrayed his sacred originalism and textualism. Using semantic contortions Scalia became the judicial activist, the very super-legislator he despised, finding something in the Second Amendment that simply isn’t there. Although it may make some sense for a legislature in certain locales to permit individuals to keep a firearm at home for self-defense, where exactly does one find that right in the Constitution? Perhaps to some folks it’s like a religious text—even non-creative Bible thumpers can find something to support their confirmation bias. That said, as of right now, the final arbiter of the Second Amendment (SCOTUS, that is, not the NRA), has recognized one narrow, individual, non-military right to keep a weapon—at home for self-defense. That’s it.
Even then, this newly minted constitutional right of handgun ownership for in-home self-defense, as with all other constitutional rights, is not absolute and must bow to other more compelling rights and interests. Legislatures continue, legitimately, to prohibit “restricted” persons from owning or possessing firearms. 18 U.S.C. §§ 921, 922. For example, Section 922(g) makes it unlawful for the following persons to own or possess a firearm (even touching a piece of live ammunition—a single bullet, not to mention a rocket-propelled grenade—is prohibited):
"(g) It shall be unlawful for any person—
(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States;
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
The NRA clichés find language and meaning where none exist, to the exclusion of all else, including life, the police power, protection against enemies foreign and domestic, the Thirteenth and Fourteenth Amendments (for those who subscribe to the belief that the Second Amendment was ratified primarily to enforce rather than fight against tyranny—slavery).
I disagree with Bret Stephens on many things. Not this one.
It’s long past time for repeal given (1) the absolute dearth of any language in the Constitution that could conceivably protect the near daily appearance of war zones on American soil, (2) the many express rights and interests in the Constitution that countervail one’s putative right to own, possess or use a killing machine, and (3) the archaic, although nostalgic, idea that citizens need state militias to repel the tyranny of the federal government. That’s not to say legislatures should not authorize ownership and appropriate use of certain firearms by qualified persons. In fact that’s exactly to say legislatures should be the ones to authorize ownership and appropriate use of certain firearms by qualified persons for certain activities. But there should be no question in modern society that a right enshrined by constitutional protection exists to guarantee the individual ownership, possession and use of firearms—such a right simply does not exist.
HOW DO YOU RATE?
Love Thy Neighbor, Woodcut, 12" x 24", Richard J Van Wagoner, Circa 1970, Courtesy Van Wagoner Family Trust**
Actually, I do disagree with Bret Stephens on one point, his assertion that the NRA does not have a lock on the genitalia of legislators whose primary (self-) interest is contrary to that of their Oaths of Office and a majority of citizens.
Finally, today's NRA is not the organization my avid sportsman grandfather joined and endorsed.
While my grandfather collected rifles, shotguns and handguns, to him they were beautiful but functional works of art—mostly single-shot or over-and-under, double-barrel, pump and bolt-action, pearl-handled, engraved. Gun safety and responsibility were paramount. He passed away nearly 30 years ago. I like to believe he would have resigned his membership long before now or become an advocate for gun laws and regulations so the extreme factions would not eventually result in the loss of rights for everyone and the massive daily military-style killings on American soil.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.