The truth about the 2nd Amendment

West facade of the Supreme Court building in Washington.


by Tom Regan

It’s a pretty common refrain you’ll hear from gun rights activists: The 2nd Amendment gives them the right to own whatever kind of gun they desire and any attempts to place restrictions on ownership, or the size of ammunition clips, or how long you have to wait before you buy a gun, or any kind of a restriction at all, are unconstitutional.

It’s a go-to argument for the guns right movement, and one that is echoed by members of Congress and their pay master, the National Rifle Association. It’s too bad it’s completely bogus.

To get the real story, you need to go back to two Supreme Court cases: Heller vs DC in 2008 and MacDonald vs City of Chicago in 2010.

In 2008, DC had some pretty restrictive laws about handguns, the use of gun locks and keeping them in your home. A group of citizens, of whom Mr. Heller was one, decided to sue the city of DC, arguing that these restrictive bans were anti-2nd Amendment and therefore unconstitutional.

The case went all the way to the Supreme Court, where in 5-4 ruling, the Court held the 2nd Amendment protects an individual’s right to “ possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home.” But since DC was a federal district, the question was whether the 2nd Amendment protections outlined in Heller were guaranteed under the Due Process Clause of the 14th Amendment. This was decided in another 5-4 case, the above-mentioned MacDonald vs The City of Chicago. This ruling “incorporated” the 2nd Amendment.

At first glance, this would seem to back the claims of gun right activists that any restrictions placed on the 2nd Amendment are unconstitutional. Again, this is completely bogus.

In his majority decision in Heller vs DC, Justice Antonin Scalia also wrote that “Like most rights, the Second Amendment right is not unlimited [my emphasis]. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (Wikipedia summary)

More important, in the MacDonald vs The City of Chicago, the Supreme Court left this language intact.

Which brings us to today. In fact, it brings us to just yesterday. The Supreme Court passed on taking up a case challenging California’s mandatory 10-day waiting period to buy a gun, even if you had previously purchased a gun. It was the latest case of the Court refusing to hear a challenge to a law restricting gun rights.

These include the refusal in 2015 to hear a challenge to an ordinance in Highland Park, Ill. that banned the sale and possession of semi-automatic rifles. Eight other states have similar laws, none of which the Court has overturned.

In June of 2017, the Court did not take up a challenge to the constitutionality of a San Dingo ordinance about concealed weapons. The 9th Circuit Court ruled that “the 2nd Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”

In a February 2017 ruling, the 4th Circuit Court of Appeals, a much more conservative court, ruled en banc, 10-4, that Maryland’s ban on 45 different kinds of semi-automatic weapons and its limit of 10 rounds on gun magazines were both constitutional and that the 2nd Amendment doesn’t protect “weapons of war.” In November of 2017, the Supreme Court declined to heat the case.

What this tells us is that as far as the current justices are concerned, the matter is settled. It is lawful for people to keep a handgun or a shotgun in their homes for self-protection. The 2nd Amendment protects this right. But states are free to implement restrictions on “weapons of war” or on other aspects of gun rights.

If anyone tells you differently or you hear a politician or NRA official say different, it’s just B.S. Nothing more and nothing less.

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Follow the money


Since the Parkland shooting two days ago I’ve been thinking a lot about this bizarre dance that seems to happen after every mass shooting in the United States. And I believe I’ve come to understand that in the end it’s not about the rights of gun owners or the desires of those who want more gun regulations. To quote the song, it’s all about the Benjamins, and the various entities that use these situations for financial gain.

A young man walks into a school and killed 17 people. Several factors that influence the financial outcome of this tragedy kick into high gear. First is the media. Please make no mistake about it while I believe that the vast majority of journalists in this country have chosen the profession because they believe in the right of the American people to know all the facts and truths that they can provide them, they work for gigantic corporations for whom the bottom line is the most important line. (I say that after 40 years of working as a journalist.) Soon incidents like the one in Parkland are all about eyeballs. Endless loops of aggrieved mothers, helicopter shots of children with her arms in the air filing out of active shooter situations, breathless coverage of the funeral of those murdered, revolve endlessly on our TV screens. The cable news networks in particular will milk this coverage as long as they can. It makes money. It is the American way. (Less than a year ago we saw cable TV networks provide endless coverage of Donald Trump because “he was good for the bottom line,” a situation gleefully noted by several top broadcasts executives.)

Next come politicians, who offer “thoughts and prayers” as sacrificial examples of their politically impotency. And why are they politically impotent? Because they need the money from groups like the NRA and the Mercers and the Koch brothers in order to gain that most important thing of all – reelection. For them, mass shootings are also about the Benjamins. Political campaigns cost money. Standing up for principles is fine but it won’t get you the donations that you need especially if you find yourself being primaried by another candidate who cares less about principles and more about money. So they consistently misrepresent the views of their constituents, claiming they believe one thing when actually believe the opposite. These men and women are bought and paid for like trinkets in a gift shop. They will do what they’re told to do.

And then we have the NRA which is really little more than a puppet for the gun manufacturers it represents. It is the NRA who gives the money to the politicians to ensure their political impotency, money they get from the various gun manufacturers who profit wildly after every mass shooting. For it is well known how gun sales surge when innocent people are mowed down in these situations. One could almost argue that gun manufacturers survive on mass shootings and the resulting fear of gun owners that their weapons will be taken away from them. They play all of us for suckers. They love gun control debates because they drive gun sales. They make sure the fire and the tempers are hot to keep us from examining what is really going on, regardless of where we fall on the issue.

Follow the money. It always boils down to that. If we really want to find ways to bring in smarter gun regulations that don’t interfere with gun owners’ legitimate rights to own firearms we have to look at why we continue this sick and twisted dance every time this happens. Follow the money.

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