In the recent flurry of Supreme Court news about jiggery-pokery applesauce, it’s good to remember that the court used to conduct itself with more dignity and its justices cited legal history rather than Scrabble-point vocabulary.
Not long ago, retired Supreme Court Justice John Paul Stevens published a history of the Second Amendment and a proposal to fix the problem of language that’s become antiquated and opaque. “Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment,” the Justice wrote. In addition, Stevens explained:
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited…to keeping and bearing arms for military purposes [and] did not limit the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
No reasonable relation. Coming off a first World War and just two years away from entering another one, the Court knew that long barrels (and larger magazines) make more efficient weapons.
The regulation of shotgun barrel length continued unchallenged until the governor of Indiana signed ownership of sawed-off barrels into law just recently. That will probably open the floodgates for Me-Too bills in the other 49 states now.
Restrictions will likely stay in place for machine guns, rocket launchers, land mines, armored tanks, AC-130 gunships and A-10 Warthogs, and nuclear submarines. With the exception of machine guns, which about half a million specially-licensed people legally possess, none of these weapons can be part of a private stash of armaments for defense against intruders, tyrants, or zombies.
That’s because any rational person understands that those weapons have “no reasonable relation to the preservation or efficiency of a well regulated Militia.” Also, because we all know that with the exception of Texas and/or Arizona, there probably won’t be a time when one of the 50 states actually wages war against the Federal government. It’s in this line of thought that Justice Stevens wrote:
[M]achine guns were… not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the ‘common use’ requirement.
But Stevens is a retired Justice. And that was a much different Congress in 1939, and Miller is a court decision not too far from its hundredth anniversary.
Honestly, I would love to own an AC-130 gunship, or an A-10 Warthog. Those planes are badass, and they’d be useful as hell in protecting my home from unwanted invaders. Just one pass over the rooftop would be all that’s needed to take out the trash.
But I’m not currently pursuing procurement of those arms because in order to use the awesome machines I’d also need an airfield, and a control tower, and hangars, and jet fuel, and a lot of other stuff that would limit the practicality and usefulness of the weapons.
One thing I would not need, because this is the United States of Armament, would be any sort of intensive training or actual experience before I could fly the planes. Based on everything my wife and I were required to do for our concealed-carry licenses, I figure that a few hours in a rudimentary class, a handful of questions on a written test, half a box of bullets on a target, and a couple of votes from a gunship board should be enough to get me a pilot’s license.
They’re not attack planes, after all; they’re just instruments of self-defense. So my right to own them should not be infringed.
But what if the Second Amendment said that the right of homeowners to withhold sales of property to Negroes could not be infringed? What if it said that the right of Christian doctors to deny lifesaving measures to unmarried pregnant women could not be infringed? What if it said that American citizens could never travel to Great Britain, or own anything made by British hands?
Give those a chance to sink in as genuine ideas, just like the idea of liberty and gun ownership for all.
Guns were respected in 1787. Slaves were not. So it’s easy to imagine a 21st century America where, because of 18th century values still echoing in our Constitution, a man’s property would be so sacred that only he and God could decide who buys it. It’s not even a far-fetched scenario, since plenty of original property deeds in the United States already contain “race-restrictive covenants” legally barring black ownership. I’ve personally seen a deed from the 1930s stating that the property could hold “no tin shanties, tarpaper shacks, or Negroes.”
Guns were valued in 1787; bastard children and harlots were not. So it’s not hard to envision a 21st century America where, because of 18th century social norms still present in the Constitution, any doctor could refuse care for either or both of those, as long as the doc wrapped the refusal in Christian faith. (Another scenario that comes very close to the actual pro-discrimination legislation that’s been proposed or passed in several states now.)
Guns were prized in 1787; former Redcoats were not. No problem, then, imagining a 21st century where because of 18th century resentments still underlying the Constitution, travel to the United Kingdom would be banned, just as Americans have been prohibited from visiting Cuba for 50-plus years. We rationalized the Cuba ban because there was still a Castro in power on the tiny island, and besides, it was the place that let the Soviets plant missiles and then aim them at us during John F. Kennedy’s presidency. Why shouldn’t the Brits get the same treatment for aiming muskets at us?
Then again, how could we rationalize lasting hostility toward the British monarchy, 200 years after it stopped being anything but an ornamental money-suck for its people? This would mean no Beatles or Zeppelin or Sex Pistols, no Downton Abbey or Benedict Cumberbatch, no Rickrolling on YouTube. A Constitutional ban on British pop culture would have been enough to topple a weakened American government during the 1960s when everything else was being fought over in the streets and the Rolling Stones were singing about it.
And it seems to me that if any part of the Constitution still limited African Americans to less than full marketplace rights, there’d be a moral outrage strong enough to overturn it. No property deed still in force today can preserve a land parcel’s original and outdated race restrictions. That would be unacceptable.
There’d be an even louder cacophony against doctors who would willingly and legally kill mothers and children in the name of the Constitution and Christ (although it’s apparently not a problem for pharmacists to refuse contraceptive care on religious grounds).
In each case, social outcry against antiquated, irrelevant Constitutional language and values would make sure that the Constitution got a thorough update to address current, not ancient, realities.
My point is that an amendment isn’t a Holy Writ that can never be challenged or changed; we saw that with the 18th Amendment of 1920 being repealed by the 21st Amendment of 1933. For thirteen years, Prohibition was the law. It guaranteed Americans, mostly women and children, the right to be safe from the drunken rages of fathers and husbands who were powerless to control their liquor intake. Prohibition guaranteed peace and tranquility in homes and communities affected by alcohol’s insidious impacts.
It was a good idea, borne of good intent. That was the fantasy.
In reality the 18th Amendment had a profoundly negative impact on the nation. It triggered an explosion in crime that included any American who wanted an evening cocktail at home, found and paid for the stuff to make one, and so had equal footing with Al Capone, Bugsy Moran, and Machine Gun Kelly as a flagrant violator of the United States Constitution.
Which was ludicrous—and just one of the many reasons that, little more than a decade after its ratification, the 18th Amendment was un-ratified for being ill-conceived, poorly executed, and highly destructive to civil society.
Wow, does that sound familiar, or what?
So why not a little bit of gun regulation?
Justice Stevens proposed adding five words to the beloved 2A: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms while serving in the militia shall not be infringed.
Looks perfectly logical, but it wouldn’t work because some NRA-backed politician would immediately find a way to auto-conscript all gun owners into the linguistically required group. Or, we’d all enlist. But I think Stevens is on the right track.
I mean, just hypothetically, of course, and as long as I get to keep my guns.