Last week in this space I reflected on two emotions that have the power to usher in substantial political change: hope and fear. There are, to be sure, many powerful emotions one could so describe. Since Sunday, however, I have been experiencing one particular visceral feeling: anger.
The breaking news came Saturday afternoon. Another mass shooting, after last week’s carnage at the Gilroy garlic festival, this time at a busy Walmart in El Paso, Texas. Early reports indicated at least 20 shot in this sister town to Ciudad Juarez in Mexico. As I write this, there are 22 confirmed dead. The shooter drove 10 hours, an arsenal in tow, to massacre Mexicans because, as set down in a hateful screed, he believed they were “invading” America. Another community shocked, wounded, and changed. You watch the story unfold, hope the early reporting is wrong, brace for the worst.
Even before the full body count is known, news outlets post graphics to rank the latest incident in terms of lethality. (At this point, the El Paso shooting is the sixth deadliest shooting on U.S. soil.) I heard someone on TV say that every mass shooting is both the same and different. I nodded when he said that. The arc does seem ever similar. The social, political, and personal aftermath of a mass shooting in America has, sadly, become an exercise in déjà vu. You see the predictable statements of career politicians. You hear stories of heroism, specific to this chaos, but universal in what they say about certain people’s capacity for courage under literal fire. It’s too awful to contemplate, but also utterly familiar. Expressions of condolence seem insufficient; calls for change seem futile. You go to bed sadder, a bit more fearful it can happen in your community, not very hopeful anyone will do a damn thing about it. The status quo seems fixed. It is wearying.
Millions of Americans woke up Sunday morning expecting to hear more details about the El Paso shooting: motivations of the shooter, tributes to the fallen, updates on the wounded. There was that of course. But there was something else – terrible news of another mass shooting overnight in Dayton, Ohio. Nine people murdered in under a minute. The cables had to go split screen – toggling between the terror in El Paso and the terror in Dayton, between mass gun slayings separated by only 13 hours.
And, in that circumstance, the déjà vu feels not just maddening but grotesque. Because now there are two unspeakable tragedies, unfolding in parallel. And now the same old platitudes (“thoughts and prayers”), the same confounding calls to inaction (“now is not the time to talk about politics or legislation”), the same nonsensical status quo statements sound downright pathetic because you just heard them yesterday.
For me, on Sunday afternoon, in the wake of two senseless murder scenes, sadness and heartbreak gave way to anger, boiling anger. Anger at the shooters. But also anger at a racist president who foments hate and white nationalism. And then, ever sharply and unforgivingly, anger at the insufferable craven boobs we call lawmakers who perennially block all common sense laws on guns.
More than 90 percent of Americans support universal background checks. Yet no action.
Seventy-five percent of Americans support a 30-day waiting period for gun sales. Yet no action.
Seventy percent of Americans support requiring privately owned guns to be registered with the police. No action.
There was something else that added to my anger. It was not just the inexcusable inaction. It was also the utter cowardice on the part of so many lawmakers – especially Republicans – in their radio silence. So many felt that it sufficed to post banal tweets of condolence and commiseration but went missing from the airwaves to defend their policy views. CNN reported that after the Dayton shooting, 49 out of 50 GOP lawmakers declined invitations to discuss the shootings on air. Who knew politicians were so coy? First responders braved bullets to save innocents in two American cities, and yet scores of elected officials fled the public square in the aftermath. If you believe in the status quo, say so and defend it; if you believe in change, then fight for it. If you can’t do either, then step aside and leave your office to someone with integrity. It’s pretty simple.
I am angry. So are many of you. Anger isn’t reason. Anger isn’t analysis. Anger isn’t evidence. Anger isn’t a policy proposal, reform, or solution. Raw anger can cloud and distort more than illuminate. So one needs to be careful. But controlled anger can be the lifeblood of change. At least I hope so.
THE SECOND AMENDMENT
The horrific mass shootings unleashed over a week’s time in Gilroy, Calif., El Paso, Texas, and Dayton, Ohio have renewed the public debate over gun control legislation and the rights of individuals to buy, own, and carry firearms. Ratified in 1791 by Congress and often referred to as “the right to bear arms,” the Second Amendment 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.
Many in the Founding Fathers generation believed that governments are prone to use soldiers to oppress the people, and that this risk could be eliminated by allowing the government to raise armies comprised of full-time paid troops only when needed to fight foreign adversaries. For all other purposes, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.
The crux of the modern debate is whether the Second Amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a collective right that should be exercised only through formal militia units, or organized groups like the National Guard that replaced state militias after the Civil War in the 1860s. The National Rifle Association (NRA), founded in 1871, and its supporters have been the most fervent proponents of the argument that the Second Amendment gives all citizens—and not just militias—the right to own guns and have pursued a fierce campaign against gun control measures at the local, state, and federal levels.
The Heller Decision
In a landmark 5-4 decision, District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment creates a federal right to individual gun ownership, and that the District of Columbia’s law banning individuals from keeping a loaded handgun at home without a trigger lock was unconstitutional.
The late Justice Antonin Scalia, writing for the majority, first addressed the question of whether the Second Amendment only protects the right to possess and carry a firearm in connection with militia service:
Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
In an impassioned dissent in Heller, the late Justice John Paul Stevens vehemently opposed Justice Scalia’s argument supporting an individual’s right to keep and bear arms, writing:
Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.
It is notable, however, that in declaring an individual right to bear arms, the Court’s majority made it clear that there are limitations on that right, just as there are limitations on other constitutional rights. Even the conservative justices agreed that the Second Amendment did not confer a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” As they explained:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not…Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
The Court went on to provide a non-exhaustive list of gun restrictions that it considered to be “presumptively lawful”:
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.
The majority in Heller recognized that the country has a gun problem, but warned that the Constitution takes “certain policy choices off the table”:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
In 2010, the Supreme Court extended its holding in Heller, which only applied to the federal government, to apply to states, ruling that under the Fourteenth Amendment, states similarly could not pass laws that infringe on the individual right to gun ownership. Justice Stevens wrote another forceful dissent, warning that the majority’s decision posed a significant risk to public safety:
Although the Court’s decision in this case might be seen as a mere adjunct to its decision in Heller, the consequences could prove far more destructive—quite literally—to our Nation’s communities and to our constitutional structure. Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home.
In his 2014 book Six Amendments: How and Why We Should Change the Constitution, the late Justice John Paul Stevens—who was retired at the time of the book’s publication—explained that Congress couldn’t justify its failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons by appealing to the Second Amendment or the Supreme Court’s Second Amendment decisions.
Perhaps to the surprise of many, one of the most vocal conservative opponents of the Second Amendment was the late Chief Justice Warren Burger. In 1991, he declared on PBS: “[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 that I have ever seen in my lifetime.” He added that if he had to rewrite the Bill of Rights at that time, “[t]here wouldn’t be any such thing as the Second Amendment.”
Prospects of Gun-Control Legislation
The New Yorker’s Jeffrey Toobin points out that the future of gun-control legislation in Congress looks grim due to the NRA’s political clout among members of the Republican Party, including President Trump, who are quick to thwart efforts to curb gun violence.
Moreover, even if Congress or states manage to pass laws restricting gun rights, the conservative majority on the Supreme Court may overturn these laws as violations of the Second Amendment. The Constitution, however, is subject to the ideological forces of the time, and Supreme Court decisions—victories as well as defeats—can be temporary. Toobin explains: “The Court changed the Second Amendment, and the Court can change it back again, in its original direction. This kind of change takes significant resources and enormous patience.”
Other methods of tackling gun violence have been explored at the state and federal levels, such as requiring universal background checks, passing red-flag laws, restricting open carry laws, and eliminating the sale of large capacity magazines, machine guns, 50 caliber weapons, and other military-grade firearms.
Is the right to individual gun ownership part of the fabric of American society? Let us know what you think by replying to this email or writing to us at [email protected].
THIS WEEK ON STAY TUNED
David Miliband is this week’s guest on Stay Tuned. He is the chief executive of the International Rescue Committee and a former member of the British Labour Party. He served as the UK’s Secretary of State for Foreign and Commonwealth Affairs from 2007 to 2010.
In this sneak peek at the interview, Miliband discusses what the Russians have learned from their cyberattacks on the U.S. and Europe:
There was and is a sustained attempt to destabilize American democracy. There was and is a sustained attempt to destabilize European democracy…The question is not whether we’ve learned the lessons. The question is whether the Russians have learned. And I’m afraid that the lesson they’ve learned so far is that they can get away with a lot as long as they fragment and weaken the countries of liberal democracy and if they find allies elsewhere…They are mobilizing their power in a far more effective way than we are.
Don’t forget to listen to this week’s episode. It drops this Thursday, August 8th.
Shannon Watts is a mother of five who founded Moms Demand Action, a grassroots movement seeking public safety measures that can protect people from gun violence. @MomsDemand activists show up in their red shirts around the country demanding common-sense gun reform from Congress, state legislatures, and CEOs of private companies. The group has helped push 20 states into passing gun-safety legislation, but their work is far from over. With facts as her ammunition, @Shannonrwatts dispels myths about guns and gun ownership with hard facts and statistics. Follow her and her organization and join the movement!
ENDING GUN VIOLENCE
If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “Ending Gun Violence.”
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Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Aaron Dalton