In the wake of the mass killing of school children and school employees in Newtown, Connecticut, One Million Moms 4 Gun Control and the Brady Campaign to Prevent Gun Violence have sponsored marches and rallies across the country to demand local, state, and federal gun control initiatives and legislation. Unfortunately, at the same time as the gun control protests gain momentum, gun purchases in the United States, especially purchases of the AR-15 military style semi-automatic rifle used in the Newtown killings have skyrocketed. Gun dealers and advocates are using the possibility of further legal restriction on gun ownership to generate record sales and profits.
In January, New York State became the first state following the Newtown massacre to enact stricter gun regulations. The law put in place an immediate ban on semi-automatic rifles and pistols, shotguns, and other firearms with military-style features. It also requires universal background checks prior to the sale of all guns and ammunition, makes it easier for officials to confiscate firearms from the mentally ill, and increases penalties for gun-related crimes.
President Obama has endorsed similar national legislation to curb "the epidemic of gun violence in this country" including universal background checks for all gun buyers; a crackdown on gun trafficking; a ban on military-style assault weapons; and a ban on ammunition magazines holding more than 10 bullets. Although the President has also found it politically expedient to promote himself as a gun hobbyist.
Meanwhile the National Rifle Association has been busy leading a counter-assault. Wayne La Pierre, the executive director of the NRA accused President Obama of undermining 2nd amendment constitutional principles, demonizing law-abiding gun owners, and trying to "every private personal firearms transaction right under the thumb of the federal government." According to Mr. La Pierre, if Obama and gun control advocates get their way, only criminals will be able to have weapons and we will all be subject to tyranny.
One question that concerns everyone involved in the current debate on gun control is how will the conservative majority on the United States Supreme Court, which claims to follow a strict "textualist" interpretation of the Constitution, rule on the constitutionality of local, state, and national restrictions on gun ownership. Two recent court decisions provide a clue to what these justices think, but I believe even a conservative court has the ability to rule in favor of even the strictest gun restrictions.
In a 2008 decision, District of Columbia v. Heller, the court held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes on federally administered territory such as the nation's capital. In 2010, in McDonald v. Chicago, the court held that the right of the people to "keep and bear arms" applied to the states as well.
In general I find most "textualist" arguments forwarded by the Supreme Court's right-wing activists to be self-justifying contorted attempts to discover constitutional support for positions they already hold. However, when looking at the Second Amendment, I think it is useful, even fun, to play along with the textualists game and, to borrow from Shakespeare's Hamlet, hoist them by their own petard.
An examination of the Constitution shows a very clear and precise distinction between the term "people" and "person" or "persons." The authors of the Constitution use the individual term "person" or "persons" twenty-two times in the original document but the collective term "people" only twice, in the Preamble and in Article 1 Section 1. The Preamble begins "We the People of the United States." This country is not established by individual states nor is established by individual persons. It is a nation established by a collective "People."
According to Article 1 Section 1, the collective "People" of each state chose members of the House of Representatives, but individual participation or membership in this People is not defined or discussed and the rights of individual persons can legally be limited. In the early years of the republic states placed residential, citizenship, religious, property-holding, racial, gender, and age qualifications on voting by individual "persons." Constitutional amendments had to be passed to grant the right to vote to blacks, women, and 18-year-olds and to outlaw poll taxes. My eight-year old grandchildren still cannot vote and probably should not.
In this textualist view, the right of the "people" is a general statement of principle not a specific or individual right. This distinction can be seen in the Fourth Amendment where the collective right of the people "to be secure in their [individual] persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the [individual] persons or things to be seized."
The importance of individual rights for persons is made explicit in the Fifth Amendment. "No person [emphasis added] shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person [emphasis added] be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
In this textualist view the Second Amendment, which 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," is clearly referring to the collective "people"; the collective nation has a right to defend itself. However, there is no specific prohibition on limiting the access of individual "persons" to dangerous weapons.
Gun control and restrictions on ownership are a political decision left to elected officials, not constitutional principles. This interpretation of the Constitution and the Second Amendment provides an opportunity for even the most conservative Supreme Court Justices to support significant new gun restrictions approved by elected officials in local, state, and federal governments.