Ho hum! Another mass shooting. This time a gunman killed 4 people at a hospital complex in Tulsa, OK. So, in the past two or three weeks, the most publicized mass shootings took place at a grocery store, an elementary school and at a hospital!! It is very apparent that there is absolutely nowhere that is safe in the “land of the free and the home of the brave.” “The home of the brave,” used to refer to our soldiers who fought and died to protect our country. Now, every citizen has to exhibit bravery just to go to the store, a movie, take a subway or send their kids to school. There is no other industrialized country in the world where citizens are under constant threat of being shot.
Unfortunately, as we have all come to understand, nothing will change so we might as well just get used to it. I realize that is a pretty sad statement but it’s pretty much a fact. People in this country seem to believe their ‘right to bear arms’ is more important than living in a society where people can freely go about their everyday lives and it is not necessary to have serious discussions about ‘hardening’ our schools and having all of our children routinely participate in active shooter drills.
The root of this belief is the Second Amendment to the Constitution which reads: “A well regulated Militia, being necessary to the security of a free State, the right to keep and bear arms shall not be infringed.” Of course, the part of this text that is routinely quoted is the latter part that states, “the right to keep and bear arms shall not be infringed.” Little attention is paid to the beginning of the text, “A well regulated Militia.”
The real complication is trying to interpret this text in the context of society today. The majority of Supreme Court justices (and many on the Federal bench thanks to Mitch McConnell) today are ‘originalists’ in their judicial philosophy. According to Merriam-Webster, originalism is: “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.” The members of the judiciary that ascribe to this philosophy believe that the Constitution does not evolve.
The Second Amendment was ratified in 1791 as part of the Bill of Rights. And what weapons were available then? Single shot muskets and flintlock pistols. A skilled operator could fire off three rounds per minute. Things like AR-15 style assault rifles and high-capacity magazines were not even within the realm of possibility. It is hard for me to imagine that if such weapons had been available that the Second Amendment would have been written the way it was. An originalist interpretation of the Constitution with respect to firearms just makes no sense to me. Fire arm technology is allowed to advance exponentially and yet the Constitution is supposed to stay static and frozen in 1791? How does that make any sense whatsoever?
The current Supreme Court under Chief Justice John Roberts have addressed issues before that were never envisioned by the Founding Fathers. When the country was founded and the First Amendment was written, there was no such thing as Super PACs. One could argue that the original intent of the Founding Fathers was to ensure that elections were fair and as close to one vote per one man as possible. (Granted there were the issues of slavery and women’s suffrage which were addressed later). They certainly didn’t envision Super PACS which are an artifact of modern society. And yet, in the case of Citizens United v. Federal Election Commission in 2010, the Supreme Court ruled based upon an interpretation of the First Amendment which reflected the evolution of modern society, to overturn a century of campaign finance restrictions which allowed corporations and Super PACs to pour unlimited amounts of money into elections.
The Supreme Court is currently on the verge of striking down a New York restricting the ability of people in New York to carry concealed weapons. “The case in question is New York State Rifle & Pistol Association Inc. v. Bruen, which involves a 1913 law that requires someone who wants to carry a concealed gun in public in New York to have a license to do so, and in order to obtain said license, prove that they have “proper cause.” In New York, that “proper cause” can’t be some vague fear of violence but a credible threat against that person’s life, and one that cannot be mitigated in other ways”1
Clearly the society and population density in New York today is far different than it was in 1791. Continuously interpreting the Second Amendment as it was written in 1791 with the emphasis on ‘the right to bear arms shall not be infringed’ without taking into account the evolution of both firearm technology and society as a whole, is nothing short of insanity. I am no Constitutional lawyer, but it certainly seems to me that the words at the beginning of the Second Amendment, “A well regulated Militia,” could provide some basis for ‘regulating’ exactly what firearms are available to the general public.
However, until such time as the Supreme Court majority is no longer made up of ‘originalists’, the Republicans in Congress find enough backbone to enact commonsense gun control laws, and/or we stop electing politicians bought and paid for by the gun lobby, we might as well just get used to the fact that mass shootings are a way of life in the United States. Good luck the next time you go to the grocery store! Maybe ‘fashionable’ bullet-proof vests will start trending on Ebay.