My Turn: Guns and God at the Court

  • mactrunk mactrunk

Published: 6/4/2022 10:54:05 PM

The Supreme Court will soon hand down two decisions that could change the course of this country’s history — one on abortion, the other on guns.

The leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization demonstrates that the court is poised to destroy the constitutional right to abortion. What the country deep in its bones knows, and what Alito and his cohorts will deny, is that the decision in Dobbs is being driven by the personal, political and religious beliefs of a majority of the justices.

They started with the result they wanted to reach and worked from there. Inconvenient truths, facts, history and precedent are being cast aside as necessary. Of course, the majority opinion will employ a battalion of words to camouflage this reality.

Personal and political ideology will likely again play an outsized role in another decision that is about to be handed down by the court. That decision is about guns. Let’s backfill a little.

The Second Amendment provides, “A well-regulated militia being necessary to the security of a free State, the rights of the people to keep and bear arms, shall not be infringed.” A principle of constitutional interpretation is that no words in a constitutional provision may be ignored; all must be given meaning.

However, in 2008, in District of Columbia v Heller, the court, with Justice Antonin Scalia writing for the majority, scuttled all previous understandings and precedent about the Second Amendment. The decision held that those words about a well-regulated militia have no import. The decision effectively reads those words out of the Second Amendment.

Gun rights advocates correctly claim that Heller created a new individual right, as opposed to the collective, militia-based right, to gun ownership. However, they ignore two important aspects of that decision: First, that the holding is limited to gun ownership for the purpose of self-protection in one’s home; and second, that Scalia’s opinion indicates that many restrictions are constitutionally permissible: background checks, bans of weapons in sensitive places, prohibitions of particularly dangerous and unusual weapons, and limitations on the commercial sale of firearms.

Even after the clarifying and qualifying phrase about a well-regulated militia has been excised, regulation of guns still is permissible. Consider the First Amendment command that Congress shall pass “no law” — really no law — that abridges freedom of speech. Notwithstanding that categorical prohibition, we all are familiar with the adage that you can’t yell fire in a crowded theater.

The recurring mass murders in this country and the daily gun violence make the individualized Second Amendment right to gun ownership subject to constitutionally permissible reasonable restrictions.

This week President Joe Biden in an address to the nation implored Congress to stop the sale of assault-style weapons and to expand universal background checks. But if Congress is too feckless and gutless (my words, not his) to prohibit the sale of assault weapons with high-capacity magazines, then at least lawmakers should raise the age to purchase these weapons from 18 to 21.

This country not so long ago banned assault weapons, but that law expired in 2004. Republicans are dead set against an assault weapon ban and will filibuster such a proposal to death in the Senate. They likewise will kill universal background checks. 

In his speech, Biden said, “When in God’s name are we going to stand up to the gun lobby? ... How much more carnage are we willing to accept? ... How many more lives must be taken before we say ‘Enough. Enough.’” We know the sad and likely answers to these rhetorical questions.

A bipartisan group of senators has been meeting to see if they can agree on any gun safety laws. The expectations for the success of that endeavor are appropriately muted, and any agreement would be minimal.

In the political and legal world of gun rights another consideration commands our attention. Before the Supreme Court this term is the case of New York State Rifle and Pistol Association v. Bruen. The issue in that case is the right to carry concealed weapons outside the home. More specifically, does the New York state licensing requirement for a permit to carry violate the Second Amendment?

Given a majority of justices’ predisposition to expand Second Amendment rights, legal observers think the court will strike down that law. But reaching (or actually, starting with) that result does not resolve the question of how expansive the right to carry loaded firearms will be.

We can hope that the Supreme Court’s ultra-conservative majority does not feel totally anesthetized from the recent mass murders of Black people and elementary school children. We can hope that the court’s decision in Bruen will not overrule the permissible restrictions that Scalia outlined in Heller and will not preclude limitations on the sale of military-style weapons.

After all, a court so concerned about the rights of a fetus might wish to be perceived of as caring at least a fraction as much about the lives of actual children.

Bill Newman, a partner in the Northampton law firm of Lesser Newman Aleo & Nasser and the host of the Bill Newman Radio Show on WHMP, writes a monthly column.

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