Strap 'em on: The "Wild, Wild West" Days Are Here Again
Introduction to this rather long post … but things that need to be said, in some cases, re-stated to reinforce some who may have forgotten, didn’t know in the first place, or who read this blog and refuse to believe anything I post, let alone what any fact to that gets in the way of their one-side opinions … so in short: they can rely on their views, opinions, and Fox news or Talk Radio all they want (that’s fine), but they cannot duck, dodge, or deceive about the facts… at least not with a straight face.
To kick things off is this excellent review is here. Now some will immediately skip it once they see the link and source, but that reinforces my basic argument about those who run and hide from the truth, and they ought to be careful: They can run and hide from the facts but that does not dismiss the facts and certainly not the truth side of facts. Yes, there can be awful facts, and piecemeal facts, but in reality facts are all around. I like to use this simple definition: “An event, item of information, or state of affairs existing, observed, or known to have happened.”
In the wake of the shooting in San Bernardino prominent conservative politicians [and the usual pundits, et al] have all come out [again] to squash momentum to step up gun regulation, using the Second Amendment to make their case for maintaining the status quo. Examples:
One day after the shooting, W/H candidate Ted Cruz (R-TX) predicted: “… that the shootings would lead to renewed calls for gun control” adding: “The goal of both President Obama and Hillary Clinton is to consistently — at every turn — weaken the constitutional rights of American citizens. In particular, to undermine our constitutional right to keep and bear arms.”
Similarly, at the very beginning of President Obama’s recent address to the nation from the Oval Office, candidate Donald Trump tweeted (his fav way to blast someone): “Hope he won't spend too much time ripping apart the 2nd Amendment!"
Candidate Carly Fiorina responded to the Obama speech similarly, saying: “I get really frustrated when I hear Barack Obama trample on our constitution and starts talking about taking away our Second Amendment rights.”
(Note: This kind of absolutism on gun laws is nothing new. Conservatives have spent years making the case that any form of increased gun control is an affront to Americans' constitutional rights as provided by the Second Amendment).
It seems that GOPers follows their “real leader, NRA CEO Wayne LaPierre who declared in a speech to the UN in 2012 that, “American gun owners will never surrender our Second Amendment freedom. Period.” (Memo for goofy LaPierre: no one is asking or seeking surrender of Second Amendment rights, period).
The heart of this post: Several top constitutional lawyers who reject outright the notion that the Second Amendment prohibits increased limitations on access to guns, instead they argue that the Constitution actually allows for a number of gun regulations which have been proposed including universal background checks and bans on assault weapons. As Gomer Pyle would say: Surprise, surprise, surprise. For today's conservative politicians it would be wise to know and understand that today's USSC has interpreted the Second Amendment to allow for these types of reforms.
The background as we all know: The current debate over gun control has its roots in the very founding of the United States, when the Second Amendment was included in the Bill of Rights: “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.”
For almost 200 years after it was adopted, the Second Amendment was interpreted to protect the right for militias to bear arms, but not individuals. In 1939, the Supreme Court ruled in United States v. Miller that restricting access to shotguns or machine guns by citizens outside the military was permissible.
According to Harvard constitutional law professor Richard J. Fallon: “The right to bear arms was thought to ensure well-regulated state militias. Regulation of firearms was permissible as long as it did not interfere with state militias. The country grew more conservative, but the predominant brand became self-reliance. It was in this political and cultural climate that the National Rifle Association started to argue the position that the right to bear arms for hunting and individual self-defense was regulated by the Second Amendment.”
Historically-speaking, conservatives have tended to support gun control, seeing it as a way to stop crime. However, that started to change in the 1970s, when conservatives began to make the argument that the Second Amendments protects individuals, rather than just the military [protecting us/the nation].
The most important and more-recent Supreme Court decision dealing with gun regulation came in 2008, when the court ruled in the case District of Columbia v. Heller. At issue was the constitutionality of DC’s ban on handguns, which at the time was one of the most restrictive in the country. In a 5-4 decision, the court struck down the ban, claiming it infringed on an individual right, namely: “…the right of the people to keep and bear arms.”
However, the court also explicitly went on to state that while owning handguns is protected as an individual right, possession of “dangerous and unusual weapons is not [protected].” (Note: This point has been lost in GOP circles).
Despite that distinction, conservative politicians have argued that the Heller ruling does not permit any change to current federal gun laws. For example, in 2013, shortly after the Sandy Hook massacre, Cruz vehemently opposed a bill to regulate high-capacity ammunition and assault weapons, saying in part: “The Second Amendment exists to ensure that law-abiding Americans can protect their homes and families, and I look forward to helping lead the fight to defeat this bill and to protect our constitutional right to keep and bear arms.”
Leading Republicans have also criticized reforms to close what many consider loopholes in background check process for gun purchasers. For example, 49 Republican senators voted against a failed bill that would have expanded background checks and closed the so-called gun show loophole, with candidate Marco Rubio (R-FL) stating that such an expansion, “would impede the Second Amendment right of a large number of Americans.”
What these politicians get wrong is that their absolutist positions were never supported by the Supreme Court's Heller ruling, which was intentionally narrow.
Professor Fallon said about that: “Heller set out sort of a bare-bones holding that there is a constitutionally protected right to bear arms, but most of the hard questions have not yet been considered by the Supreme Court. Although the Supreme Court has recognized a Second Amendment right to bear arms, it has not recognized an absolute right of everybody to bear arms, of all kinds, at all places, in all circumstances.”
A key point is that other constitutional lawyers go even further, saying that although conservatives may not want to admit it, Heller actually paved the way for more gun control restrictions.
Harvard Law Professor, Laurence Tribe said: “I believe 'assault weapons' are indeed what the court had in mind when it wrote in Heller about 'dangerous and unusual weapons. I believe military-style assault weapons will never be protected by the court in the name of the Second Amendment.”
Tribe also believes expanded background checks are constitutional and do not violate the Second Amendment as he wrote in his 2014 book: “Uncertain Justice: The Roberts Court and the Constitution” this statement:
“Computerized background checks obviously lack direct historical analogues, but laws that permit them may be the only practical way to keep guns away from felons and the mentally ill. Under Heller, then, they should unquestionably be deemed constitutional.”
The only thing the Supreme Court has absolutely ruled out, according to Tribe, is a large-scale government seizure of all guns, a fear conservatives have heavily perpetuated like this example:
Candidate Donald J. Trump recently told a crowd in SC that “he had heard Obama was considering an executive order to take your guns away.” That could never actually happen, even if the president or Congress wanted to do it, so long as the Second Amendment exists.
Short of that happening, Professor Tribe is clear that the Second Amendment does not stand in the way of gun legislation to make the country safer, adding: “The largest misconception is that the Second Amendment justifies — or ever has justified — our nation's abysmal record in protecting innocent people from avoidable gun violence. The Second Amendment and the Constitution as a whole are abused by those who treat them as a sick suicide pact.”
Finally, while there is a legitimate political debate to be had about the merits of gun control, Tribe says conservatives are wrong to make it a constitutional issue, concluding: “The obstacles to the needed degree of protection are partly technological, and mostly psychological and cultural and thus political, rather than constitutional.”
I totally agree, but try and find a GOPer today, any GOPer, and especially those seeking votes in this crazy, upside down presidential election cycle who would ever say anything like that while they are campaigning for NRA backing and money and votes. Or, as they say: “It ain’t gonna happen.” That perhaps is the saddest part of this whole propaganda war over guns for surely it is most certainly a big, heavily-financed propaganda war that mostly benefits the NRA and gun manufacturers.
I conclude with this question: How many guns has Mr. Obama come and taken away? Um … zero comes to mind real fast. So, I rest my case (and I’m not even a lawyer), although I do love the law and all the arguments therein.
Thanks for stopping by.
Thanks for stopping by.