The Supreme Court Must Ultimately Save Us From Second Amendment Genocide

gunlawsWe are trapped in a nightmarish, escalating civil war in which gun nuts, bolstered by the otherwise sensible people who support them in this national insanity, battle against those who recognize that we can we never hope to acceptably reduce gun violence until gun ownership is dramatically reduced.

Yes legislative action can blunt the damage a bit. We could and should prohibit semi-automatic weapons, as well as deadly ammunition and large capacity magazines. We could and should improve our mental health testing and strengthen background checks. We should stop shielding gun manufacturers from liability. But honestly, even all of these would not do nearly enough. These sort of legislative actions are merely the band aids we apply since we know we have no chance to obtain the life-saving cure we desperately need. In the case of our gun epidemic, that panacea is a radical gun-ectomy to remove all cancerous firearms from private hands.

Some think that repeal of the Second Amendment is a cure. But the reality is that we are so collectively obsessed with guns that we will never repeal our Second Amendment, no matter what the cost in lives. We could parade piles of bullet-ridden corpses down every American street every day and we would still stubbornly insist that no cost is too high to ensure our god-given right to bear arms. And even if we did, removing this right would do nothing affirmative to limit guns. States would only be free to pass their own similar gun-protection amendments.

But I think there is one slim hope that we are not sufficiently considering. That hope is the Supreme Court. The Supreme Court, with the stroke of one landmark decision, could reinterpret the Second Amendment so as to not only open up legislative options but to force legislators to enact them. Keeping a sensibly interpreted Second Amendment in place would be far more valuable than simply repealing it.

To refresh your memory, the Second Amendment states that “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.” This is an extremely vague statement. Our forefathers made much of their writing intentionally vague so that future courts could reinterpret them in the context of their changing times.

Certainly times have changed with respect to guns. Since this amendment was ratified in 1791, guns have obviously grown in destructive power like the growth of a fire-cracker into a nuclear weapon. The population and our proximity to each other have also grown dramatically. The days of hunting as a necessity are long past. And the number of guns, as well as their destructive power, has grown millions of times over.

Yes, I know that just back in 2008 the Supreme Court ruling in Columbia v. Heller tremendously strengthened Second Amendment protections. Although that ruling was actually very narrow, it has been extended to justify the most generous interpretation. It can be argued that this ruling was as indirectly disastrous for sane gun reform as Citizen’s United was for campaign reform.

But the Supreme Court can, should, and does evolve on important, deeply held issues. It seemed that the Supreme Court had spoken clearly against civil rights in Dred Scott v. Standford and Plessy v. Ferguson. But they did eventually do the right thing in Brown v. Board of Education and Loving v. Virginia.

If our system is to work at all, we must not give up on the Supreme Court. We must hope eternal that at least one conservative member, in light of our exponentially deteriorating situation with regard to guns, might be willing to agree to subtle but dramatically consequential changes in our interpretation of the Second Amendment.

For example, the Supreme Court could rule that the phrase “a well regulated militia” is key and that it requires a far more limited distribution of weaponry. They could rule that the definition of “arms” must be far more restricted than our current interpretation. They could rule that “infringement” does not mean anything close to the current carte blanche in place now. They could clarify that their ruling in Heller does not justify extreme gun protections nor does it speak against sensible gun control.

Is this likely? Of course not. Is it possible? It certainly is and the impact of such a ruling could be huge. What we must do is not give up on this avenue even as we simultaneously pursue others. We must find justifications to bring a never-ending stream of cases before the Supreme Court to give them opportunities to put forth a modern, ethical, and rational interpretation of the Second Amendment. We could ask them, for example, to rule whether our current lack of gun control might actually violate our Second Amendment right to a well-regulated militia. We could ask them to rule whether it is consistent with the Second Amendment to allow certain weapons to be available for sport purposes only when provided at an approved facility.

Who knows, there may be a Justice right now who might now be willing to bend on this issue, if only given one more opportunity to make such a ruling. In any case, the reality is that until they do our Second Amendment genocide will continue to worsen.

Reinterpreting, not repealing, the Second Amendment is our best way out of this gun crisis that we have brought upon ourselves. Neither voters nor the repeal of the Second Amendment will force lawmakers to control gun proliferation. Just as with slavery and segregation, only a Supreme Court ruling can both allow and force them to do so.

 

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