THE SECOND AMENDMENT IN 2021
Given the recent shootings in Boulder, Colorado (2021), please allow me to give you a view of the present “state of the law” on the Second Amendment Right to Bear Arms. Maybe a tad long winded. If too long, you can always read the first heading, The Problem Is The NRA… and then fast forward to the last major heading… Future Obligations For All Of Us. Thanks for your time and patience.
CIVILIAN USE OF MILITARY WEAPONS… THE PROBLEM IS THE NRA, NOT THE SECOND AMENDMENT
In Washington D.C. v Heller (aka HELLER 1… 554 US 570, 2008), the United States Supreme Court (in a 5 to 4 decision with Justice Scalia writing for the majority)… ruled that the Second Amendment right to bear arms is (1) not limited to State Militias and (2) that, over and above the Second Amendment, there is a preexisting, natural right for citizens to bear arms… a preexisting right that was memorialized by the Second Amendment and (3) that, the District of Columbia’s ordinance banning handguns (the weapon of choice for self defense) was an unconstitutional violation of the Second Amendment.
But, Scalia was quick to point out that… the Second Amendment right of citizens to bear arms is not absolute nor open ended. The constitutional right to bear arms under the Second Amendment has limitations. The Second Amendment per Justice Scalia does not grant the “right to keep and carry any weapon whatsoever in any manner whatsoever for whatever purpose”… a very broad exception to the Second Amendment right of citizens to bear arms… an exception that invites limitation and regulation of the type of weapons our ordinary citizens can buy, keep, possess, carry or use— an invitation to our Lawmakers to constitutionally pass laws that stop the purchase, keeping, carrying and use of AR15s (and other military style weapons… the AR15, the weapon of choice, for 19-year-old Nikolas Cruz which he used to slaughter 17 of his former high school classmates and critically wound 15 more) at Marjory Douglas High School in Parkland, Florida.
And, importantly, in the follow-up case, HELLER II (670 F3d 1244), the D.C. District Circuit Court of Appeals (with Brett Kavanaugh, then a Circuit Judge, dissenting) upheld a (follow-up) D.C. ordinance that banned AR15s and a host of other enumerated military style weapons. The U.S. Supreme Court denied cert in Heller II.
The problem is not that the hands of our Lawmakers and our President are constitutionally tied by the Second Amendment of the Bill of Rights (as interpreted by Justice Scalia in Washington D.C. v Heller I or Heller II). The problem is that the (almost) 150 year-old tentacles of the financially powerful NRA reach right into the Halls of Justice where the NRA whispers their self serving agenda into the ears of our Lawmakers and our President while putting their NRA “influence money” into the campaigns of our President and Lawmakers, telling them that, “if they want to get reelected, they better play ball with the NRA.” See the expose of the New Yorker Magazine of March 5, 2018 (The Arms Dealer by Mike Spies) which shows that the NRA is writing the gun laws in Florida.
The NRA’s financial and political influence on our Lawmakers (and President) has our elected officials doing the bidding of the NRA rather than doing the right thing for the common good by banning ordinary citizens from purchasing, possessing, keeping and using military style weapons like the AR15 that Nikolas Cruz used to slaughter his former classmates. Case in point. See the Detroit Press/News article of Sunday 2/25/18 entitled “Trump floats gun control measures” which indicated that “just floating proposals that defy the National Rifle Association and other groups drew threats of political retribution and legal action”… with the same article reporting that, “The NRA which spent $30 million in support of Trump’s presidential campaign, firmly opposes raising the legal age for the purchase of long guns from 18 to 21.” As I say, the problem for reform and for sane gun laws to protect our children is the NRA… not the Second Amendment of the Bill of Rights.
AMERICA’S LOVE AFFAIR WITH FIREPOWER… THE FOUNDING OF THE NRA
Long ago and far away– 150 years ago, our America the Beautiful had just buried 600,000 American soldiers killed by firearms,swords and bayonets during a revolution known as the Civi War… a revolution against the United States of America that started with the South’s bombardment of the Union outpost, Fort Sumpter, located in Charleston Bay, South Carolina. In addition to the Civil War dead, millions more were wounded, crippled and disabled. Can you imagine the carnage and copious amount of tears America shed for the copious amount of blood Americans shed.
When the Civil War ended, America then turned it’s attention toward “reconstruction” and how to manage the now free, black man and how to continue the management of the Native American red man. But, given the bellicose, warlike nature of us white men (and, I consider myself to be white although my Great Grandfather was Native America), we are usually up to the task of managing of the rest of God’s children… even if violence and some firearms are necessary to do the job. I don’t mean to be facetious, but I think my evaluation of the white man’s “superior” role in the management of others of God’s children… through violence and firepower is historically accurate. So is the love affair of many Americans with the kick ass “empowerment and instant gratification” that comes with the use of a firearm. I don’t discount the Black gun violence in Detroit, D.C., Chicago, L.A. and elsewhere and I don’t discount the gun violence in the Mexican barrio in Southwest Detroit (which I cover in Chapter II, St. Patrick’s Day Massacre… Holy Redeemer Classmates in my third book), but the history of the white man is second to none in violence… firearm violence and otherwise. So an organization as bellicose, threatening, powerful and as fear mongering as the NRA (which sprung to life right after the American Civil War) comes as no surprise.
In 1871 (in the aftermath of the Civil War firearm-violence and the newly created problem of managing the now free black slaves, and in the continuation of the white man’s westward expansion and the firearm-violence needed to control the Native American problem), a “special interest” group arose… a special interest group of like-minded white men who founded the National Rifle Association (NRA), just to make sure that the white man’s Second Amendment firearm expectations and the white man’s domination of others through firearms continued on, unabated. Historically speaking, it’s difficult for me to see the NRA as anything other than… just a special interest group of white men who directly or subtly promote “white supremacy” and “American exceptionalism.” And, you don’t have to give me statistics on how many Native Americans, Mexicans, Blacks, Asians, etc have given in to the NRA campaign of fear, by proudly joining the ranks of the NRA over the last century and a half.
But, you must give credit where credit is due, and credit is due to the NRA… for (1) preserving the sacredness of the white man’s firearm and (2) for hardwiring the DNA of the white man with a prevailing, firearm’s bias (a conscious and subconscious bias) that tells the white man that buying and possessing firearms (including military firearms) is a necessary and absolute ingredient (and a civil right) of a free society. “Don’t tread on me, baby.” Right or wrong, In its best light, I see the NRA as a financially powerful, ultraconservative group with a wide open, firearm agenda that far exceeds the firearm rights and protections of the Second Amendment. I also see the NRA as an organization that will spare no expense to get its way… and implement its agenda by the power of the purse, doling out of millions to our elected politicians for the protection of the NRA’s “special interest.” I think it obvious that the NRA’s wide open firearm’s agenda does not necessarily align with what is best for America, what’s best for our democratic form of government and what’s best for America’s treasured “life, liberty and pursuit of happiness.”
OTHER BILL OF RIGHTS AMENDMENTS… LAID TO REST
Over the last 50 years since I started Law School, I have witnessed the conservative, “federalist” Judges in America decimate the Fourth Amendment’s prohibition against “unreasonable searches and seizures” (with exceptions that swallow up the rule… cops “good faith,” “inevitable discovery,” “attenuation,” logic defying “no expectations of privacy,” etc) all to protect “We the People” from the bad guys. Ditto for the Fifth Amendment’s right against “self incrimination” (A right that hardly ever applies because, although the cops obtained a confession after hours of interrogation at the police station, the cops didn’t need to give the accused Miranda warnings because the accused was not really under arrest or even in custody)… all to protect “We the People” from the bad guys. Ditto for the Sixth Amendment’s right to Jury Trial in criminal cases (where the “harmless error” rule upholds the conviction because the Appellate Judges… not the Jury, “cherry pick” the trial record and tell us there’s “lots of evidence of guilt”)… all to protect “We the People” from the bad guys. Ditto for the Seventh Amendment’s right to Jury trial in a civil case (where the Judges dismiss a case with their scripted incantation… “no reasonable Jury would find”…fill in the blanks, as the Judges tell the rest of us what a Jury would have done with a case the Jury never heard)… mostly to protect the Insurance Industry from personal injury Plaintiffs. See Beals v Michigan, 497 Mich 363 (2015), Sidorowicz v Chicken Shack, 469 Mich 912 (2003) and see Professor Kimble’s 8/21/17 article in Lawyer’s Weekly on “Textualism” (Justice Scalia himself… a leading proponent of “textualism”)… which, in Michigan’s conservative Courts, is just another ideological doctrine used to rule against Defendants in criminal cases and against Plaintiffs in civil cases. The point???
A SECOND AMENDMENT ON STEROIDS
During the very same time that the Fourth, Fifth, Sixth and Seventh Amendments of the Bill of Rights have been robbed of their power to protect American citizens, neutralized and brought to heel by the conservative, “Federalist” Judges and so-called “non-activist” Judges, the NRA HAS PUT THE SECOND AMENDMENT ON STEROIDS!!! The NRA has parlayed bias, fear and their own brand of “pay to play” capitalism to become a very financially strong presence in the halls of American government… a strong presence that has (1) manipulated language with P.R. (“Guns don’t kill people, people do,” “she wasn’t a victim of a gun crime, she was a victim of a criminal with a gun”… distinctions without a difference… and my over-the-top emotional favorite… “I will give up my gun when you pry it from my cold, dead hand”, etc)… repeat, the NRA (in a shrewd P.R. campaign) has manipulated language to control how Americans are suppose to think about “gun crimes”… er I mean crimes committed by a criminal who just, coincidentally, happened to have a gun at his disposal (see I’m getting it) and (2) the NRA has created a hardwired bias (conscious and subconscious) in our fellow Americans in favor of a wide open access to firearms… all through the power of money with the NRA’s lobbyists bearing financial gifts and contributions to Lawmakers along with the always veiled threat, “play ball with us and you get reelected, otherwise you don’t get reelected,” strategically used by the NRA to dominate our Lawmakers and force our Lawmakers into doing the bidding of the NRA by recreating a Second Amendment that is constantly injected with steroids. The NRA is not alone in this P.R. and “ply the Lawmakers with money” approach. Big Pharma, Wall Street, Banks, the Insurance Industry and other large Corporations use the same (anti-Democracy) playbook. It is the playbook I confronted everyday of my Trial Lawyer career as I attempted to pierce through Corporate America’s playbook on behalf of the common man and the forgotten woman in Courtrooms throughout Michigan and other states.
SECOND AMENDMENT… SELF DEFENSE
As someone else recently pointed out, the Second Amendment has nothing to do with self defense. The concept of self defense was well recognized in the English common law, and the Founders didn’t need to preserve a Constitution declaration of self defense any more than they needed to preserve a Constitutional declaration of the the right to procreate through sexual intercourse or the right to educate those procreated or the right to farm in order to feed those procreated.
More particularly, however, President Trump’s present “self defense” position, claiming that we can arm teachers to ward off attacks by suicidal terrorists bearing AR15s… is just a repeat of his campaign promise to the NRA (“I’ve got your back”). President Trump’s position is ridiculous on it’s face. Assuming teachers relish the idea of going to school each day with a weapon and assuming that when “push comes to shove” the teachers will show more courage than the armed deputies did during the Parkland Florida massacre, how are the teachers going to implement the Trump plan??? If they are armed with a pistol, shotgun or rifle, they will be overwhelmed with the superior firepower of the intruding terrorist bearing an AR15 or a bump stock. If the teachers are armed with an AR15 or a bump stock, both the teachers and the invading terrorist will kill the entire class (or the entire school population) with terrorist fire and “friendly fire.” And what do the teachers do when the bell rings and the students leave en masse and head toward their parent’s cars as the terrorist appear in the surrounding cars, trucks, buildings and trees with AR15s??? It’s the terrorists‘ AR15s against the teachers’ AR15s and let the carnage begin!!! President Trump’s suggestion is nothing more than a ridiculous “I got your back” NRA soundbite.
SECOND AMENDMENT… HUNTING
Ditto for the concept “hunting.” The Second Amendment has nothing to do with hunting… despite the protests of those great Statesmen Ted (“Scratch Cat Fever’) Nugent and his buddy Kid (“Made in America”) Rock. The Founders did not need to preserve a Constitutional declaration of the right of American citizens to hunt wild game to feed their families. Beside, an AR15 could kill a 175 deer in 30 seconds, but the wounds would be so catastrophic that there wouldn’t be too much left over to eat except a stew of shattered bones and decimated organs, splintered throughout the venison.
SECOND AMENDMENT RIGHT TO START A REVOLUTION WITH FIREARMS
The Second Amendment when viewed through the lens of “originalism” (what the Founders intended at the time) very well could have meant that the (always distrustful of government) Founders wanted to insure that the new government of America (that they were creating with their new Constitution) would not visit upon the colonists the same abuses that the British government had visited upon the colonists before the Revolutionary War. Since there was no standing American Army, the Founders wanted to insure through the Second Amendment that, if the American government became just as abusive as the British… firearms would be available to Militias to rebel against and quickly dismantle the new found (“Army-less”) American government. Although the “originalist” Justice Scalia discounts the “militia” introductory phrase of the Second Amendment (in the Heller I case), (1) logic tells me that that, if the Founders wanted the Second Amendment to guaranty the right to firearms to all people, they would have taken out the militia phrase and replaced it with a their familiar, oft used phrase “We the People” and (2) most prior case law did not support Scalia. See 2/25/18 article by John Atcheson No the Founding Fathers Didn’t give You the Right to bear Arms http://flip.it/Oi8wrH
Today in America, any claimed right to participate in a rebellion against the United States of America with firearms is an “anachronism” (a thing that belongs to an earlier time period… a thing out of place in this time period)… because America now has a standing Army that is the strongest Army in the world. Even hundreds of thousands of survivalists like Cliven Bundy armed with AR15s will be no match for the well trained soldiers of America and their overwhelming firepower of “shock and awe”… tanks, mounted machine guns, fighter jets, bombers, helicopters, missiles, rockets, submarines, etc. This ain’t Viet Nam and the American survivalists are not the Vietcong and there will be no Ho Chi Minh Trail in the Jungles of America during the next revolution.
Any insurrection against America by Second Amendment warriors will meet the same fate as the rebellious spirits of Detroit met in 1967 when the 101st. Airborne marched into the City and took over, and the same fate the late David Koresh and the Branch Dividians met in Waco Texas and the same fate the Symbionese Liberation Army met during a police siege when charred bodies of their members were recovered from a burned out home in Los Angeles in the 1970s. The only way an American revolution can succeed is if there is a Military coop that joins the revolution… and then, as in the recent Arab Spring revolution in Egypt a few years back proves, we will lose our Democracy with a military takeover. So, I think that any true “originalist” would see that any claimed constitutional right to rebel against the American government with firearms is an anachronism. Today in America, our constitutionally protected revolutions are set up to be peaceful through the power of the pen, through peaceful protests in the streets, through peaceful civil disobedience taught to us by Jesus, Mahatma Gandhi, Henry David Thoreau, Martin Luther King and others and through the vote. I submit that… this is what it means to be a progressive and to be an “originalist” on the Second Amendment. And, if the “originalist” Justice Scalia’s “originalism” had not been so warped (consciously or subconsciously) by NRA non-stop P.R. messaging, he would have used “intellectual honesty” to join the four dissenting Justices in the Washington D.C. v Heller case.
And, even if I am wrong, a revolution by Second Amendment warriors in America would solve absolutely nothing. Look at other recent revolutions. Look at the American sponsored revolution in Afghanistan against the Taliban… now in its 18th year of death and destruction as that revolution once again comes to grips with a resurgent Taliban after billions of American dollars were spent… as we Americans hope our country isn’t going to be bankrupted by its military expenditures like Russia was in the late 1980s. Ditto for the revolution in Syria which has spun out of control for almost a decade, killed thousands and maimed tens of thousands, created refugee camps everywhere, leaving Syria in ruins while putting America in a “face to face” confrontation with Russia and with our own allay, Turkey. Ditto for the revolution in Iraq against Saddam Hussein… which destabilized Iraq and gave us the rise of Sunni ISIS. Ditto for the once successful Arab Spring revolution in Egypt which is now a military dictatorship. Ditto for the 1970s revolution in Iran which (business as usual) deprives its citizens of their God-given rights and has left them with a succeeding government of “theocracy by Mullah” who makes all the final decisions of State based on the Holy Koran. Ditto for Cuba 50 plus years later, still a dictatorship. Ditto for Libya, the Sudan and Yemen… nothing but chaos, lawlessness, death and destruction and soon more of the same in Venezuela. Armed revolutions rarely succeed in improving lives or the quality of life.
WHAT THEN???… IS THE JUSTIFICATION TO BEAR ARMS OF ANY KIND AND NATURE IN AMERICA???
If none of the above justifications allow for “generally” giving the right to all competent, adult citizens to purchase AR15s, then where does that claimed right come from??? As R.William Schooley tells us with support from Justice Scalia, the Second Amendment gives us ordinary citizens the right to bear arms as a “preexisting right”… even though that Second Amendment language is prefaced with the “militia” introductory phrase and not prefaced with a “We the People” phrase. In short, Justice Scalia, in finding for the Second Amendment right of ordinary citizens to bear arms In Heller I, just threw out the introductory clause of “militia” and told us that the Founders were just memorializing a “preexisting right” to bear arms by ordinary citizens… not really that convincing or persuasive, but the issue is now moot because (1) like an umpire who calls balls and strikes, it is what it is, no matter where the ball was when it crossed home plate and (2), more importantly, so what???… because Scalia (using the restraint that the NRA does not use) clearly told us in Heller I that the Second Amendment right of ordinary citizens to bear arms is not absolute nor open ended because that right is not the “right to keep and carry any weapon whatsoever in any manner whatsoever for whatever purpose.”
Whatever the Second Amendment means today, 250 years after the American Revolution, it is obvious that our political leaders in Congress and in the White House have the constitutional authority under the Second Amendment (as interpreted by Justice Scalia’s majority opinion in Heller I) to take AR15s or other military grade weapons out of the hands and out of the grasp of ordinary, non military citizens… i.e. as Justice Scalia said in Heller I, no Second Amendment “right to keep and carry any weapon whatsoever in any manner whatsoever for whatever purpose.” And, obviously, the answer is not, therefore, President Trump’s/NRA’s suggestion… to arm the teachers with their own AR15s or other weapons and make our schools killing fields of “friendly fire” and “collateral damage.” Also, it won’t do to raise the age of AR15 purchasers to 21 as the (“in the pocket of the IRA”) Florida Senator, Marco Rubio, mentioned. When a child is killed by an AR15, it is no comfort to the family or to us Americans that the killer who bought the AR15 was over 21. And, finally, it won’t do to tell the rest of us Americans that background checks alone can solve the problem of the killing fields in American schools.
FUTURE OBLIGATIONS FOR ALL OF US
I am not really an organized, religious person, but I never forgot the impact of a New Testament quote in first year theology at Catholic Central High School in 1957 (Father Ned Donoher presiding)… paraphrasing… if you harm a child, it would be better for you if a millstone was hung about your neck and you were cast into the sea to drown. Even at a minimum (secularly speaking)… when you have multiple incidents of white males killing our numerous, defenseless children in schools, you have an adult and parental obligation to attack the problem on any and all fronts… repeat, on any and all fronts or lie in historical shame and in cowardly impotence for failure to do so. So…
(1) Stop selling Military weapons like AR15s to ordinary citizens.
(2) Reject out of hand the nonsense of arming our teachers to engage in firefights with a “hell bent on suicide” terrorists armed with AR15s (or other Military weapons). Schools are not “killing fields” where our children are designated as “collateral damage” of “friendly fire” in firefights between terrorists and teachers.
(3) Reject out of hand Senator Marco Rubio’s meaningless, “cosmetic” reform (that he “will consider”) raising the age to obtain an AR15 to age 21.
(4) Reject out of hand the supposed solution that enhanced background checks alone are “the” solution.
(5) Reject out of hand politicians who are bought off by NRA contributions… with the NRA obviously currying favor to get politicians to do nothing to protect our children.
(6) Improve on the delivery of mental health services in America… and remember it was former Michigan Governor, John Engler, who closed the Lafayette Clinic in the 1980s along with other mental health facilities.
(7) Stop warehousing the mentally ill in prisons. I argued against the warehousing of the mentally ill in prisons in the 1970s in the Supreme Court of Michigan on the (then new)… “Guilty but Mentally Ill Verdicts” and lost.
(8) Rail against the culture of death in America.
(9) Rail against the “good old boys” culture of “White Supremacy” and “American Exceptionalism.”
(10) Start treating the overwhelming depictions of violence and gun violence in movies and in videos as we now treat “child pornography” i.e. those who watch, create a market for it and are… complicit. Of course, this should not be legislated, but simply a consideration for a “boycott.”
(11) I know the conservatives on the U.S. Supreme Court have told us that “money” and “corporations” have First Amendment, Constitutional rights (Citizens United and Hobby Lobby), but rail against the NRA’s lobbyist and their unending contributions to our Lawmakers that are strategically used by the NRA to get our Lawmakers and elected Judges to turn their head away from the common good toward special interests of the NRA.
(12) Take up the pen and criticize.
(13) Take up peaceful, mass protests.
(14) Take to the streets and march.
(15) Engage in peaceful civil disobedience, if necessary.
(16) Vote against those Lawmakers who accept contributions from NRA lobbyists.
(17) get the word out…
… all so we can take our democracy back from the power of money and from the Corporate oligarchs of America. John Brennan, and other self-proclaimed libertarians… don’t be so afraid of governmental control of your life that you unwittingly give away control of your life to Corporate America, its lobbyists and their (“have your eye for a grape“) Oligarchs. It’s our children’s lives at stake and their quality of life and their physical well being and their right to grow old… as all of us Master Lawyers have certainly done. Don’t just sit there and trot out the NRA sound bites and party line. If you do, history will bury you along with all the children of “mass shootings.”
I think our Founding Fathers would have mobilized and energized to solve the school shooting problem??? Get on board for our children, or fall silent and get out of the way so you don’t block up the hallway to Justice!!!