Never Again

The late historian James MacGregor Burns, in his studies of political leadership, noted that throughout the decade of the 1960’s political leadership emanated from the bottom up, rather than from the top down. The civil rights movement, and later the anti-war movement, both started out with activism at the grass roots. He explained that it was the leadership of people like Rosa Parks and the organizers of the Montgomery bus boycott that first drew the then unknown Martin Luther King, Jr. to their cause, for which he later provided intellectual discipline to translate actions into policies in order to advance political objectives (social and economic equality) and to develop strategies and tactics (non-violent protest) to achieve those goals. This pattern was repeated in the anti-war movement, with early grass roots protests attracting a wider intellectual circle that could integrate political strategies with broader policy goals.

We may again be witnessing another unique moment in history when the “followers” become the leaders and the “leaders” become the followers. By failing to take seriously the protests of the “Never Again” movement reacting to the Parkland high school massacre (effective gun control) and women in the “Me Too” movement (sexual harassment and equal rights), the Trump administration and their allies are making the same mistake that the “establishment” figures of the 60’s did and, like them, may have some catching up to do. Indeed, they, and the National Rifle Association in particular, have been fatally misconstruing what rights are actually protected by the Second Amendment (that was a pun, in case you missed it).

Too often overlooked in this debate is what Justice Scalia, writing for a majority of the Supreme Court, actually said in District of Columbia, et al. v. Heller, 554 U.S. 570, at 626-627 (2008), the landmark case affirming the Second Amendment as an individual right:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [citations omitted]. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [citations omitted]. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

The footnote at the end of this excerpt stated that the justices “identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Thus, the court was expressly ruling that the Second Amendment does not prevent adoption of reasonable laws and regulations to protect human health and safety in the workplace or other public places. To illustrate this point, the court went on to discuss the case of United States v. Miller, 307 U. S. 174 (1939), a precedent that caught the attention of both the majority and the minority. The Miller case upheld the constitutionality of the National Firearms Act (48 Stat. 1236) enacted by Congress in 1934 to regulate and tax the interstate manufacture, sale and transportation of sawed-off shotguns, short-barreled rifles, machine guns and similar items. The Heller court, citing Miller with approval, stated that the scope of the right to keep and bear arms is further limited by the wording of the prefatory clause of the Second Amendment (“A well regulated Militia, being necessary to the security of a free State . . .”):

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.[citations omitted].

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Ten years after Heller, the Parkland students are legitimately asking why AR-15 rifles or, for that matter, any number of other automatic or semi-automatic weapons that are freely (and in many cases cheaply) available in the marketplace, cannot be outlawed or severely restricted. The head of the NRA, Wayne LaPierre, stridently argues that the Second Amendment absolutely protects the “right” to own and carry these types of weapons, but he is profoundly mistaken. While the outright banishment of such arms may be unpalatable to many people, the Second Amendment certainly does not preclude the enactment of reasonable laws and regulations, either by the federal government or the states, to prohibit or restrict the ownership and use of “dangerous and unusual” weapons. All the Parkland students are asking for is for our elected officials to show a little courage to do what the Second Amendment, as interpreted by the Supreme Court, clearly allows.

Just as Martin Luther King followed the Montgomery boycott organizers to provide intellectual leadership of the civil rights movement more than 50 years ago, today’s student leaders are waiting for national leaders to emerge who can provide transformative leadership of the gun control movement. It is ironic that the civil rights and anti-war leaders of the 60’s were snuffed out by guns, yet those grass roots movements nevertheless continued to survive and brought about fundamental changes in our society. The Parkland students saw 17 of their teachers and friends killed, and are now demanding elected officials to demonstrate similar transformative political leadership. They are leading a new call for change and deserve to be heard. Certainly, they will not be silenced.

© W. Franklin Reed

5 comments

  • Please see my comment on Bennington/Williams. Outstanding as well.

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  • The courts have danced around the 2nd amendment (and many others) to the point it gets hard to see the original meaning. In Heller, we had finally an acknowledgement that an individual right was meant, though it was less clear that the purpose of the amendment had to do with ensuring that the right of revolution would remain thinkable (after all, the writers had just participated in a contest against the then-greatest military power on the planet). A population equipped with weapons is less easily controlled.
    Now, the spirit of the thing could be kept better if citizens could have access to full military grade ordnance. Some terror scenarios get their power from being able to attack disarmed groups, and making countervailing weapons available is one response that can make sense, when most folks are NOT inclined to go attacking their neighbors. Having all weapons controlled by a central authority seems a recipe that historically has lead to extinction of liberties for everyone else; perhaps not instantly, but eventually. (I’ve noticed governments tend to attract control freaks.)
    So this isn’t about hunting, and is only a bit about defending homes.
    I’d observe that societies exist where basically everybody has arms at home. Switzerland is a wonderful place, but their arms are not limited to excellent multipurpose knives.

    For random attacks, in our lifetimes there have been plenty of examples of other weapons. Remember zip guns? Think about the improvised bombs in Iraq… It is possible to make it hard to build particular items, but if this is effective, it stultifies scientific and technical tinkering which is useful. (Consider the chemistry sets you can buy today vs. the larger Gilbert sets they sold when we were kids.) As long as any tinkering remains possible though, means to harm people will continue to exist. The idea that you’ll just ban weapons and then be safe is flawed. You need to go much further to limit inquiry…something perhaps like the Chinese government is trying.
    If you do go that way, you must remember that your liberties will also go. I hope we can do better.

  • W. Franklin Reed

    Thank you for your thoughtful comments, Glenn. The point of my article was not to advocate a particular policy solution to the problem of gun violence, but simply to point out that the Second Amendment does not prohibit regulation of firearms. We can all believe what we want to believe, but we cannot pretend that the Second Amendment prevents the banning of certain types of weapons when it clearly does no such thing. Justice Scalia definitely does not agree that the “spirit of the thing” would contemplate full access to military grade ordinance, He said just the opposite – that the Amendment’s preamble limits the scope of the right to bear arms to the types of weapons that, at the time the Amendment was adopted, a citizen militia ordinarily would be expected to keep in the home. In other words, no liberties are “lost” by regulation of automatic weapons because no such liberty existed to begin with.

    That said, I vividly remember an early class in my first course with Professor Gaudino in which the discussion turned to utopian societies. At the end of the discussion, Professor Gaudino said something to the effect that you still get the impression, after all is said and done, that someone eventually is going to hit somebody over the head anyway. So I remain skeptical that giving everyone access to automatic weapons or military grade hardware will somehow solve the problem of gun violence in this country. I think all sides agree that the problem is ultimately bad actors, not guns per se, but the problem is not mitigated when “dangerous and unusual weapons” (in Scalia’s phrase) are readily and cheaply available to just about anyone without mandatory background checks. While I agree with you that banning guns is not foolproof, neither is expanding access to dangerous and unusual weapons without restriction. I too hope we can do better.

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