We are long overdue to use more precise language about our national obsession with guns, and our repugnant aversion to gun safety legislation. The biggest problem is the willingness by politicians and news outlets to echo the term ‘Second Amendment’ when it is babbled by gun extremists.
It makes no sense to ask the question, “What do you think about the Second Amendment?” The only answer is, “It exists. You can find it between the First and Third Amendments in the Bill of Rights.” The actual text of it is relevant., reading: “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.”
The National Rifle Association likes the part after the comma very much. That was convenient when the NRA drifted from being a gun training and sportsman advocacy group into being flacks for gun manufacturers. The Brennan Center for Justice notes, “Today at the NRA’s headquarters in Fairfax, Virginia, oversized letters on the facade no longer refer to ‘marksmanship’ and ‘safety.’ Instead, the Second Amendment is emblazoned on a wall of the building’s lobby. Visitors might not notice that the text is incomplete. It reads: ‘.. the right of the people to keep and bear arms, shall not be infringed.’ The first half—the part about the well regulated militia—has been edited out.”
For more than two centuries we largely understood that the Second Amendment was to be understood in its entirety. The opening clause was relevant and important. The clause set up the rationale for the rest of it. Laws that did not impose upon a well-regulated militia, such as the National Guard, presumptively did not run afoul of the amendment.
That changed a bit in 2008 with the Supreme Court case District of Columbia v. Heller. The Court, responding to laws leading to a near-total ban on handguns in the District of Columbia, carved out a new course for an individual right to own handguns not dependent on the militia clause.
It’s a dubious extrapolation, but that’s where the Court went in a 5 to 4 decision. Now we must worry that the current Court will go even further in that direction. Yet, even in the Heller case majority opinion, written by Justice Antonin Scalia, the Court does not set out some sort of absolutist course against all firearms regulations no matter the desire of gun fetishists to see it that way. The case turned on the ability to use handguns in the home for self-defense. Scalia wrote, “Like most rights, the right secured by the Second Amendment is not unlimited. [Past items] routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Scalia’s caution tells us that assault weapons bans, safe storage and insurance requirements, and red-flag laws all likely would be constitutional even in a broad reading of the current status of law regarding the Second Amendment. Nevertheless, we routinely let state legislators bloviate that the Second Amendment means they cannot and should not take these reasonable steps as gun safety requirements. Instead, those same legislators trumpet the Second Amendment in their ill-reasoned quest to get more guns into schools and public places.
Gov. Bill Lee even refers to these callous legislative insults to our gun victims as “constitutional carry.” It’s an amplification of how muddled language serves muddled thinking — and a corollary to Lee’s use of the term “school choice” to muddle details of his unpopular scheme for school vouchers.
The “constitutional carry” obfuscation also has popped up in other places, including state and federal politicians as well as right-wingers who all seem to pick up vocabulary from the same playbook. As common-sense gun safety regulations gain in popularity, these right-wingers cannot be allowed to hijack the public debate by slapping the ill-fitting term Second Amendment to oppose any gun-related legislation.