“Reason obeys itself; and ignorance submits to whatever is dictated to it.”
March 2023


You Don’t Have To Be A Weatherman

…to know which way the wind is blowing. That’s Bob Dylan’s wisdom. Holmes’ famous quotation says the same thing, differently: “The life of the law has not been logic; it has been experience.”

The subject is guns. As the Chaplain of the US Senate said on March 28 in the wake of the school shooting in Nashville that killed 3 adults and 3 nine-year-olds, it’s time to move beyond thoughts and prayers. Also beyond the clucking of tongues and shrugging of shoulders, but move where and how to get there?

No one reading this who has a child or grandchild can be indifferent to the slaughter of the innocents. The Nashville shooter carried legally purchased weapons, and was 28 years old, so gun registrations and age restrictions are clearly not enough to keep us safe.

We’re in a box because of the Second Amendment and the hash the Supreme Court has made of it. Said retired Chief Justice Warren Burger in an interview in 1991, 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.” And the Chief Justice was no flaming liberal.

Here’s what the Second Amendment says, it is only one sentence long: “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 Constitution was written in 1787, made effective in 1789, and the Second Amendment was part of the Bill of Rights, ratified in 1791. The young country had come through colonization and a revolution, sectional rivalries had already flowered, and tyranny was feared. Tyranny from abroad, or from north against south or vice versa, the political leaders of the day worried a lot about freedom and individualism. Notice not a word appears in the text about individual persons having guns.

States and localities have mostly been left to regulate firearms ownership and use, and for better or worse they have done so. Then along came the Alito Supreme Court and things changed radically. The seminal Supreme Court case was District of Columbia v. Heller (2008). It took Justice Alito more than 60 pages to find in the single sentence Second Amendment the guarantee of a constitutional right the Nashville shooter had to purchase and own 3 guns, two of which were high powered and automatic. Perhaps Alito can explain his opinion to the parents of the dead children more succinctly.

Chicago had a strict gun ordinance, stricken by the Alito Court in McDonald v. Chicago. Now we have armed robberies almost daily.  And in New York v. Bruen the Court invalidated New York’s concealed firearms law, which had been in place for more than 100 years. The reasoning in all these cases was the burden the regulations under review placed on the “constitutional right” the Court found in the Second Amendment. To find that right one needs a flashlight, a magnifying glass, and most importantly a keen misunderstanding of life in the late 18th century. The Amendment was about limitations on the new federal government’s ability to tyrannize the states. The states agreed to a prohibition on standing armies but retained the right to a militia. Such military units would be populated by ordinary citizens, and they would need weapons. “The people” as in the preamble to the Constitution, “We the people in order to form a more perfect union, establish justice, insure domestic tranquility…and secure the blessings of liberty to ourselves and our posterity…,” the people means the collective. Persons means individuals. The framers knew both words, and they used them specifically in the Constitution. If you’ve never been bored to tears by linguistic analysis, try the Alito opinion in Heller on prefatory and operative clauses within the single Second Amendment sentence.

The Alito opinion not only ignores relevant history but also the Holmes wisdom about the life of the law being experience. Consider the experience. The US had an assault weapon ban from 1994 until 2004. In that time we averaged 1.6 mass shootings per year, 16 in total. Since then, through 2022, we have had 102 mass shootings, 5.7 per year. And since the Heller decision in 2008, over 14 years there have been 90 mass shootings, 6.4 per year. We lead the world in school shooting-related events, 288 for the ten years through 2018, 121 and counting in the decade of the 2020s. Hundreds of thousands of children have been traumatized, shot and/or killed. The numbers have been rising in the past three years.

The solution will not be easy, it crosses deeply held lines of belief. The simplest and fastest, though not a complete fix, would be to pass another assault weapons ban. It will help. The second, and less likely, would be for the Court to overrule Heller and its progeny. 

The third, by far the best and least likely, would be to repeal the Second Amendment. That path is cumbersome and probably very slow. The Amendment has outlived its purpose and usefulness and it gives frightened public officials an excuse and the crazies in their base way too much power over our civilization. The Second Amendment is literally killing us.