25 May 22
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Republicans have twisted the 2nd Amendment to suit their extremist purposes, blocking sensible checks on gun ownership and enabling the unceasing procession of mass shootings
I think of that headline after every mass shooting, including today’s horrifying one at an elementary school in Uvalde, Texas. Every country has murderous lunatics, yet only ours has so many mass shootings. Why?
Obviously, because of our insane gun culture, propped up by a preposterous misreading of the Second Amendment, funded largely by gun manufacturers, and now, like so much else, yet another identity-marker of the populist Right.
It’s not that all Americans are crazy. In fact, 87 percent of us want to prevent the mentally ill from buying guns. 81 percent want to expand background checks. 63 percent want to ban assault-style weapons. (Check out Golden State Warriors coach Steve Kerr, whose father was murdered by gunmen in Beirut in 1984, fight back tears as he talked about the shooting, and the background checks bill in particular.)
Yet Republicans in Congress have voted down all these proposals (or, when they were in power, blocked votes on them from even happening), because to win a Republican primary, you have to cater to the rabid, nearly-all-white, right-wing populist base. Any common-sense gun safety measure is seen as heresy. All Republicans can do is send thoughts and prayers.
The lie at the heart of all of this insanity is the Right’s ludicrous perversion of the Second Amendment.
Contrary to what you may have been led to believe, until 2008, no federal court had held that the Second Amendment conveyed a right to own a gun. On the contrary, the Supreme Court clearly said that it didn’t.
Why? Because of the obvious language of the amendment, which reads, in full, “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.”
For nearly two hundred years, there was widespread agreement that the Second Amendment meant what it said: that the right “of the people” meant the right to bear arms in well-regulated militias, which was how the nation protected itself prior to standing armed forces and police, and which slave-owners maintained to protect against possible uprisings. (Yes, the Second Amendment is mostly about slavery; in fact, it was added to win support for the new constitution among slave-holding states, who feared that the new federal government would disband their slave-hunting militias.)
What changed?
White people. As legal scholar Reva Siegel and others have demonstrated, (white) conservatives’ opposition to gun regulation began in the wake of the civil rights movement and the rise in the 1970s of the ‘New Right,’ made up of former segregationists, cultural conservatives (the ‘moral majority’), and white politicians demanding ‘law and order.’ While the 1972 Republican party platform had actually supported gun control, the Reagan Revolution transformed the party. (Ronald Reagan wrote an article praising individual gun ownership in Guns … Ammo magazine in 1975.) Now, being pro-gun, like being anti-abortion, became a pillar of the New Right ideology.
After all, it ticked all the boxes, tapping into white fears of “crime” and “the inner cities,” populist resentment of “big government,” and male fears of losing power in the age of women’s liberation. The Right’s newfound infatuation with guns was white, male fragility projected onto firearm ownership.
And what had once been a fringe view rejected by the Supreme Court — that the Second Amendment gave individuals a right to own guns — gradually became Republican Party gospel when the fringe took over the party. Former Chief Justice Warren Burger (a conservative appointed by Richard Nixon) described it as “a fraud on the American public.”
Eventually, this view won out, not by persuasion but by simple politics. By 2008, there were five conservative justices on the Supreme Court, and Justice Scalia wrote an opinion in D.C. v. Heller saying that the Second Amendment conferred an individual right to own guns.
There are numerous problems with Scalia’s opinion. Here are four of them.
First, he claims that the clause about militias is just a preface, with no relevance to the meaning of the right. “The former does not limit the latter grammatically, but rather announces a purpose,” he wrote. First of all, there are no other constitutional provisions that are read this way–that is, drained of any meaning at all. But wait a minute – if maintaining militias is the purpose of the amendment, then why does “the people” mean not militias but individuals? Why is a purpose not a purpose? Justice Scalia simply dismisses the first half of the amendment as merely decorative, with no function whatsoever.
Second, Scalia simply dispatches as “dubious” the drafting history of the amendment, in which James Madison deliberately did not use language of individual rights that was present in contemporaneous documents. Thomas Jefferson, for example, had once proposed “No freeman shall ever be debarred the use of arms.” That proposal was rejected.
Third, Scalia inverts the meaning of the Second Amendment itself, by saying that Congress actually can ban military-grade weapons (i.e. the kinds a militia would use) but not handguns, which are used for self-defense (which the amendment never mentions).
Finally, all of this judicial innovation took place under the banner of “originalism,” which is supposedly about what the Founding Fathers meant in 1789. Even though most of the sources cited in D.C. v. Heller come from after that time.
Of course, what’s really happening here is a social, cultural phenomenon, using the constitution as an excuse. As Siegel describes in detail in her article, Justice Scalia’s arguments for gun ownership (self-defense, law and order, etc.) belong to the 1990s, not the 1790s. He just shoehorned them into a canonical text which had its own, entirely different agenda (though one also intimately connected to white supremacy).
Since then, the Second Amendment has become gospel — literally. In a recently filed amicus brief, Texas Governor Greg Abbott argued that “Texans have long cherished the right that was confirmed by the Second Amendment, but conferred by God.” (Actually, Jesus said, “Put your sword back in its place, for all who live by the sword shall die by the sword.” [Matthew 26:52] But whatever.)
In fact, any day now, the Supreme Court is set to (probably) strike down a New York policy that issues “concealed carry” permits only to people who show that they need a gun for self-defense.
The tragic irony, as The Onion noted eight years ago, is that we know how to stop this from happening. While we don’t yet know what could have prevented this particular attack, the advocacy group Everytown for Gun Safety lists 37 solutions on its website, from background checks to waiting periods, prohibiting ‘open carry’ to repealing ‘stand your ground’ laws, banning high-capacity magazines and assault weapons to holding the gun industry accountable.
It’s not rocket science, and while there remains significant disagreement on some of these policies, there’s enormous, widespread support for many of them. But God help any Republican who has the courage to stand up to the NRA, gun manufacturers, and the rage of the populist Right. (Indeed, almost no such Republicans exist anymore.) For profound, deep, even spiritual reasons, many white Americans do exactly what President Obama infamously said in 2008: “They get bitter, they cling to guns or religion or antipathy to people who aren’t like them… as a way to explain their frustrations.”
Our collective refusal to do anything about these horrifying mass shootings is not the Second Amendment’s fault. It’s white supremacy’s fault. It’s Republicans’ fault. It is that simple.
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