The 2nd Amendment Was Never Intended to be a Death Warrant | Opinion

Photo by Bermix Studio, via Unsplash.

Like rapid fire bullets from an AK-47, American gun carnage is set to repeat. Random shooters can fell anyone, anywhere: at church, school, or the Dollar General in Jacksonville, Florida.

Mass shootings occur with such frequency that Americans seem inured to a brutal reality where the unstable and aggrieved - and the racist - can buy a gun as easily as a bag of chips.

The ‘Right’ to Bear Arms is Divorced from Historical Record

Alleged “originalists” on the Supreme Court, who claim to hew to the original meaning of the Constitution, did an about-face on the 2nd Amendment. (Disclaimer, my federal litigation practice focuses on 1stand 14th Amendments, I’ve never tried a 2nd Amendment case.) As Chief Justice Warren Burger observed:

The gun lobby’s interpretation of the 2nd Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime … The real purpose of the 2nd Amendment was to ensure that state armies, the militia, would be maintained for the defense of the state ... The very language of the 2nd Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

This view, shared by many Constitutional law scholars, holds that an unbought and un-lobbied interpretation of the 2nd Amendment flows squarely from its historical context: In 1775, King George declared that the American colonies were in a state of rebellion. Eager to defeat, tax and control them while extracting their natural resources, the king sent bayonet-armed soldiers to occupy the 13 colonies. The British army quartered itself in the colonists’ meager homes, slept in their beds, ate their scarce food, and confiscated their guns so they couldn’t form a militia to fight back.

England disarmed the colonists to frustrate their efforts to organize a militia, which handicapped the rebels and, initially, the Continental Army. When the fighting was finally over, revolutionary war leaders met at the first Constitutional Convention in 1787 to draft their new governing laws. General George Washington, fresh from the fighting, didn’t just attend the Constitutional convention, he was the convention president.

As written and adopted in 1791, the 2nd Amendment reflected the inequity of weaponry felt during the British occupation: “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.”

Nowhere does the original 2nd Amendment state that citizens have the right to bear arms against each other, rather, the right to bear arms as described was a matter of collective defense.

From Militia to Every Man for Himself

After ratification, the 2nd Amendment was in quiet effect for nearly 200 years, and various gun regulations were adopted without conflict or controversy. Trouble started brewing in the 1970s when the National Rife Association began lobbying to increase the production, sale, and distribution of firearms.

After decades of effort, the NRA’s lobby paid off in 2008, when the Supreme Court declared for the first time that an individual right to gun ownership under the 2nd Amendment was separate from the “militia clause” in the very same sentence, effectively erasing those terms and their historical context altogether.

Since then, Democrat states with stronger gun laws have experienced lower murder rates than republican states. Arranging gun mortality rates according to controlling party affiliation, twice the number of people are murdered per capita in red states than blue, even though red states tend to have more rural populations.

When a Governor Blends Guns with Racist Policies, the Result is Predictable

Florida’s Gov. Ron DeSantis promotes guns and racist policies at the same time, and he is wildly unpopular among black Floridians.

In 2020, Florida Moms Demand Action said this about DeSantis’ “stand your ground” enthusiasm: “Florida’s hate-fueling, so-called ‘Stand Your Ground’ law already encourages violence and deadly vigilantism — especially against Black Floridians. DeSantis’ proposal would make it even worse and embolden white supremacists.”

Fast-forward to last week, when three black Floridians were murdered by a white supremacist with swastikas on his gun.

DeSantis, who previously made it legal to drive over protesters in Florida without criminal penalty, made it obvious that he was targeting BLM protesters. The next year, as multiple Neo-Nazi protests took place in Florida, complete with white power insignia and anti-Biden banners, DeSantis hesitated to condemn the protesters at all.

The NRA, the fossil fuel industry, and right-wing authoritarians like DeSantis, protect corporate profits at the expense of human life, and a tainted Supreme Court has aided them. It’s a good thing education in Florida is grossly substandard, or people might start to see a deadly pattern.

Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.


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