Daily Archives: June 17, 2016

If you think the Supreme Court is poised to expand or restrict gun rights sometime soon, don't hold your breath.

As handwringing continues over what might have prevented the Orlando massacre-- an old-time filibuster sparked by it even broke outin the Senate on Wednesday -- the justices are about to consider a state gun control law enacted in the aftermath of the Sandy Hook school massacre in Newtown, Connecticut.

According to its docket, the court on Thursday will weigh whether to take up Shew v. Malloy, a case with all the elements that could make it emblematic for the battle over the Second Amendment's meaning.

It's a dispute between a host of gun rights groups, businesses and individual gun owners against Connecticut over the constitutionality of a sweeping regulatory regime that bans so-called "assault weapons" -- semiautomatic firearms and large-capacity magazines of the very sort used in Newtown and Orlando.

Back in October, an appeals court in Manhattan said the Connecticut law and a similarly restrictive law in New Yorkwere constitutional --and the plaintiffs vowed to take the battle to the Supreme Court.

Tom King, the head of New York's biggest gun rights group, even said he was "happy" to have lost the case because that meant his organization could now ask the highest court of the land to decide the issue once and for all.

Brendan McDermid / Reuters

But then Justice Antonin Scalia died. And suddenly,the gun lobby's calculations changed -- including King's, who told the New York Daily News weeks after Scalia's death that it was "just the wrong time" to continue the fight in the absence of a reliable conservative vote at the Supreme Court.

That might explain why Senate Majority Leader Mitch McConnell (R-Ky.) glowingly pointed to the National Rifle Association's opposition to Merrick Garland, the president's high court nominee, to rationalize his own refusal to hold a vote and a hearing for Garland.

None of this matters, and yet it matters a great deal.

Because despite the pleas from gun rights advocates who still want the Supreme Court to take up the challenge to the weapons ban, the justices could wield all kinds of reasons not to touch the case with a 10-foot pole.

It's not that they aren't interested in clarifying the scope of the Second Amendment in the wake of Scalia's magnum opus in District of Columbia v. Heller, which for the first time recognized a fundamental right to gun ownership in the home. But to echo King, it's just not the right time -- not with a short-staffed Supreme Court, a volatile political environment, and a nomination fight that may very well continue after President Barack Obama's successor takes office.

As things stand now, all signs point to an extremely quiet and uncontroversial Supreme Court term beginning next October -- a dry season that will stand in stark contrast to the current term's constitutional blockbusters on affirmative action, abortion and immigration, to name only a few.The court just isn't taking many new cases.

This paucity of potential big decisions aside, the courthassent some signals that the Second Amendment is safe, even as it has rejected dozens of cases challenging gun control measures across the country, leaving lower courts as the final decision-makers.

Over the protest of Scalia and Justice Clarence Thomas, the Supreme Court refused in December to review an appeals court decision that effectively upheld an assault weapons ban in a small Illinois town. Thomas said that decision treated the Second Amendment as a second-class right.

But in March, a month after Scalia's death, the justices tipped their hand the other way, ruling that a Massachusetts ban on stun guns may violate the right to bear arms, quietly but forcefully endorsing the late justice's Heller decision.

The Second Amendment extends ... to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," the court said in a very brief rulingthat no justice signed his or her name to.

But writing separately, Thomas and Justice Samuel Alito said they would have gone further, asserting that indeed, gun ownership for self-defense is a "fundamental right" while making clear that Americans' safety shouldn't be "left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe."

Fighting words, as well as fodder for debate about where the court may go next on guns.

It is precisely this seeming tension within the Supreme Court -- plus the political fallout from Scalia's vacancy and all the work that other courts are doing to make some sense of the Second Amendment -- that indicates why the justices probably won't pull the trigger on the next big gun rights case soon.

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Don't Bank On The Supreme Court To Clarify The Second ...

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it's important to understand that they got it wrong and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don't know it now, but under the original document, Mitt Romney would be serving as President Obama's vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country's first 20years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass shooting, now is the time to acknowledge a profound but obvious truth the Second Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It's been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the weapons of today that are easily accessible are vastly different than anything that existed in 1791. When the Second Amendment was written, the Founders didn't have to weigh the risks of one man killing 49and injuring 53 all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.

Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned downby someone wielding a weapon that can easily kill you and countless others.

The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered. It has for too long, and we must now say no more.

Finally, if we take the gun-rights lobby at their word, the Second Amendment is a suicide pact. As they say over and over, the only way to stop a bad guy with a gun is a good guy with a gun. In other words, please the gun manufacturers by arming even the vast majority of Americans who do not own a gun.

Just think of what would have happened in the Orlando night-club Saturday night if there had been many others armed. In a crowded, dark, loud dance club, after the shooter began firing, imagine if others took out their guns and started firing back. Yes, maybe they would have killed the shooter, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale shootout without anyone knowing who was the good guy with a gun, who was the bad guy with a gun, and who was just caught in the middle? The death toll could have been much higher if more people were armed.

The gun-rights lobby's mantra that more people need guns will lead to an obvious result more people will be killed. We'd be walking down a road in which blood baths are a common occurrence, all because the Second Amendment allows them to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders' view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at the NRA, an organization that is nothing more than the political wing of the country's gun manufacturers, and say enough is enough.

The Second Amendment must be repealed, and it is the essence of American democracy to say so.

Watch four pro-gun arguments we're sick of hearing.

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Why It's Time to Repeal the Second Amendment