John Paul Stevens, a retired Supreme Court Justice, wrote an insightful opinion piece about why we should repeal the Second Amendment to the US Constitution. I completely agree with him.
Our system of laws in the United States is based on the common law and the idea that once a judicial decision has been made, it stands, and the decisions which follow take that prior decision into account. It makes the law predictable. People are able to determine their rights based on past decisions and act accordingly. There is less chance for inconsistent decisions, which would likely cause confusion for people trying to figure out whether they are acting with the law or against it.
The Second Amendment states:
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.
If we ignore the politics around it, the Amendment reads about the necessity of a well regulated militia, not an individual’s right to bear arms. But, if we don’t trust our own eyes to read it, the Supreme Court addressed the issue in 1939, in the case of United States v. Miller. The Supreme Court had to address whether prosecuting someone for transporting a sawed-off shotgun between states pursuant to the National Firearms Act violated the rights of states (all rights not granted to the federal government are reserved to the states) and whether it violated the Second Amendment.
At the time the Constitution was written, states were concerned about the federal government maintaining a standing army, as it may be used against them. The compromise was that the states would train and maintain civilians to act in the common defense of the country. They were expected to provide weapons themselves, rather than have them supplied, and they were expected to be of the kind typically maintained by individuals at the time. The decision specifically addresses the sawed-off shotgun and finds there is no evidence that it would support a militia, therefore there is no right for the individual to have one.
In 2008, however, the Supreme Court again took on the question of whether the Second Amendment is to be applied to an individual’s right to bear arms in District of Columbia v. Heller. This time the Court decided that the District’s handgun ban and other requirements regarding how the guns must be kept violated the Second Amendment. They found that individuals had a right to bear arms unconnected with any military service (the militia).
The irony of the decision is that it was the typically-conservative justices who found this to be an individual right. Throughout his career, Antonin Scalia was known as a “strict constructionist,” one who seeks to interpret the Constitution as it’s written, staying in the timeframe it was written. This should have meant that he found in favor of the District of Columbia because the Second Amendment specifically references “a well regulated militia.”
One way to assess whether an opinion is judicial politics rather than good law is whether the justices abandon their long-held positions in crafting a decision. Another example of this is the decision of Bush v. Gore where the Supreme Court voted against allowing the Florida Supreme Court to determine whether a recount could be held for the presidential election in 2000. The conservative justices, who typically favor states’ rights and refuse to step in when a decision is based purely on state law, voted against the Florida Supreme Court, and did not allow the time for a recount.
Another way to determine whether the justices are creating law rather than applying precedent is to see how limited the ruling is. In District of Columbia v. Miller, the majority states that the ruling is not meant to limit gun regulations and it specifically did not address whether the ruling applied to States through the Fourteenth Amendment, because the District of Columbia is a federal district, not part of any state. Thus, the question of what a state may do in regulating the possession of handguns, which is really the big question, is an open issue.
Some would argue that precedents have been overturned in the past, like Plessy v. Ferguson (separate is fine as long as its equal), which was overturned by Brown v. Board of Education (separate is not equal), and thus overturning US v. Miller is well within the court’s purview.
The problem with that assessment is that there was a group of people being discriminated against based solely on the color of their skin. That is, without question, unjust, and violative of the US Constitution. The same cannot be said about the Second Amendment. No discernible group is being singled out for factors over which they have no control.
Roe v. Wade, which gave women the right to seek an abortion, is a similar type of decision. For much of the history of the United States, women were considered property of their husbands. They could not own land and they could not vote. These decisions were based on a factor that a woman cannot control – her biological gender. Women did not even get the right to vote until 1920, 144 years after the Constitution was written.
In the absence of a compelling reason, overturning the Supreme Court’s ruling in United States v. Miller was nothing but politics, an infringement of our justice system by lobbying groups and individual political preferences. This is a particularly egregious intrusion because the majority of people in the country favors sensible gun laws. Decisions like District of Columbia v. Heller make it harder to enact those laws. If the Supreme Court cannot keep its political decisions to its individual members, we have no choice but to do what needs to be done, and work to repeal the Second Amendment ourselves.