SCOTUS keeps papering over the antiquated Second Amendment

The six Federalist Society-vetted members of the Supreme Court claim to be close readers of the Constitution, “originalists,” who parse the intentions of the founders and, somehow, even the attitude of the public, whenever a law was created. The latter approach is their fairly new “history and traditions” gambit.

Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brent Kavanaugh and Amy Coney Barrett, want to keep the country locked into 1789 or 1868 or whenever the original law was passed, unless, of course, they want to change its meaning and morph the Constitution for their own political purposes. Emily Bazelon wrote an illuminating essay on how the Court’s conservative justices are increasingly utilizing the history-and-traditions standard to serve their own agendas.

In Wolford v. Lopez, a 6-3 ruling issued June 25 against a Hawaii law not allowing individuals to carry guns without permission onto private property open to the public, such as grocery stores, gas stations and hotels, the Court put the burden on property owners to post notice, or somehow otherwise communicate, that guns are not allowed on their property.

Historically, the Supreme Court has been all about property rights. You might even say it is a SCOTUS tradition. But I guess not so much when the rights of gun owners are involved.

Historically, the Supreme Court has been all about property rights. You might even say it is a SCOTUS tradition. But I guess not so much when the rights of gun owners are involved.

In his majority decision in the case, Alito wrote that Hawaii’s law violated the constitutional right to keep and bear arms in that it “hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.”

Covering the ruling, the hosts of the popular podcast “Strict Scrutiny” talked about how they always appreciate Alito’s “historical fiction.”

With their decision, the FEDSOC majority, which one might rightly call the Supreme Court Revanchists of the United States, if it didn’t create a rather unfortunate acronym, has once again furthered the rights of gun owners while ignoring the obvious intent of the wording and structure of the Second Amendment, which very simply states: “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.”

That’s it. That is all James Madison had to say on the subject of bearing arms, and, of course, while he was writing the proposed Bill of Rights in 1789, our newly formed democratic republic did not yet have a standing army and was still reliant on the 13 states to provide militia men to protect the newly founded nation.

As I wrote in Salon a couple of years ago, Madison knew what he was doing, and he was deft in his use of English. When he plucked up his quill in the summer of 1789 to draft his proposed amendments to the Constitution, what would become the Second Amendment (the fourth article in his draft) read like this: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

In the end, after discussions with other founders, Madison decided to put the second statement before the first, rendering the second clause conditional, plainly meaning, as long as the country finds itself in need of a militia, people should have the right to bear arms.

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Just as we should not ignore the placement of the opening clause, we should not skim over Madison’s use of “well regulated”, as today’s conservative justices do, without giving that thought. In any case, taking the actual words he used into consideration, Madison’s meaning comes even clearer: As long as the country needs a militia to provide security, people should have the right to bear arms, but only so long as they are part of a well-regulated unit.

Which sounds an awful lot like the National Guard. In fact, precisely like it. And the National Guard, established in 1916, has a deep history and tradition of its own.

So, two quite pointed conditions were crafted into this one-sentence amendment: Citizens may bear arms if we need a national militia and if the men who come to it are well trained.

Any other reading of the sentence would seem to be ideologically and/or trips-and-other-luxuries-paid-for-by-my-billionaire-pals driven. In his decision, Alito also wrote that “‘the plain text of the Second Amendment protects’ what petitioners want to do: carry handguns for self-defense.”

But that is not the plain text at all.

Beyond the need for occasionally pulling together well-regulated armed forces from the state militias, a very plausible theory of why the framers agreed to allow citizens to regularly bear arms in that era was that the Southern states were in constant fear of slave revolts.

Obviously, neither condition applies today.

Chattel slavery in the Confederacy was abolished by President Abraham Lincoln on the first day of 1863 (although it should be said that a very similar oligarchic attitude toward workers still prevails, in forcing prisoners to work in some states and in corporate America’s anti-union thuggery and use of contractors to avoid providing the benefits of full-time employment).

America also has a massive standing military, spending more on it than the next 14 nations combined, that includes the Army, Navy, Marines, Coast Guard and Air Force, not to mention the Space Force (whatever that is) and Immigration and Customs Enforcement (ICE), Donald Trump’s personal, massively funded militia that is purposely not well-regulated.

Were Madison and the other framers of the Constitution still with us, I think there’s no question they would look at modern guns and the carnage in our schools and our public spaces and tell us that we have gotten it all wrong.

Our right to personal safety and the pursuit of happiness far outweighs any misreading of the Second Amendment. Were Madison and the other framers of the Constitution still with us, I think there’s no question they would look at modern guns and the carnage in our schools and our public spaces and tell us that we have gotten it all wrong, that our right to personal safety and the pursuit of happiness far outweighs any misreading of the Second Amendment as a general right to roam our communities with guns.

Indeed, just as they consider gun culture part of our history and traditions, the Court’s conservatives could cite our “history and tradition” of children being murdered or traumatized for life while at school, and the more than 130 people who are killed every day in the United States by guns. Horrific and perverse as it is, they could claim this as an American tradition. Citizens in the (actual civilized) countries of the world see this American carnage as insanity.

The FEDSOC justices put the profits of gun manufacturers over the lives of children and above the charge made by the Declaration of Independence, that we each have an “inalienable right to Life, Liberty, and the pursuit of Happiness.” (Trump may willy-nilly fashion proper nouns in his often incoherent posts to his social media platform, but I appreciate Thomas Jefferson’s capitalizations of the high-minded concepts of “Life” and “Liberty” and “Happiness.”)

To account for the desires of gun enthusiasts, an updated Second Amendment would rightly read something very much like: The right of the people to serve in the armed services or the National Guard, or to serve as law enforcement officers, if duly qualified, shall not be infringed.

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MAGA Republicans never hesitate to attack the Constitution or the Bill of Rights. They are attacking the First Amendment, targeting the separation of church and state, and our rights to peaceably assemble to protest actions of our government. On Tuesday, SCOTUS upheld birthright citizenship guaranteed by the 14th Amendment, which Trump attempted to end with an executive order on his first day back in office.

We should not be so cowed by gun fetishists that we do not constantly point out the obvious antiquated state of the Second Amendment.

Former Chief Justice Warren E. Berger, in a television appearance in 1991, said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups.” At the time of Berger’s remarks, the National Rifle Association was beginning its campaign arguing that any federal limits of any kind on gun owners were unconstitutional.

In 2018, former Supreme Court Justice John Paul Stevens wrote an opinion piece calling for the Second Amendment to be repealed because it no longer applied to our times and, you know, schoolchildren were being massacred. (You should stop reading this to read it.)

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With its 2008 decision in District of Columbia v. Heller, the Court made bearing arms about self-defense, rendering every citizen into their own personal militia. The Second Amendment suddenly became no longer about protecting the country, but about protecting oneself.

The history-and-traditions test dreamed up by the conservative justices in the 2022 Bruen decision is more nonsense papering over the Second Amendment to cover up how senseless it is in our era, and to keep America awash in guns.

I’ve said nearly all of this before. But it must be said again and again. The main thing Democrats should have learned from their experience with Trumpian and Fox News-style propaganda is that if something is repeated often enough, many people will believe it.

If that technique works for lies, it should also work for the truth.

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