The Right to Arm Bears

“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.”  

OK, now you tell me what the heck that means.  As most of you immediately recognized that’s the Second Amendment to the U.S. Constitution, the second item included in the Bill of Rights sandwiched between number one: free speech, assembly, religion, press and petition and the one prohibiting forcing you to let soldiers live in your house during peacetime.  Yes that’s actually the Third Amendment; maybe you can use that information to win a bar bet.

So what exactly is a “well regulated militia” and how does that inform us today?  Most people don’t realize (or have forgotten) that Article 1, Section 8, of the Constitution itself gives Congress the authority to provide for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions . . .”  Today we think of militias as the National Guard.  Up until this century most people thought little about the Second Amendment, and states and municipalities fairly strictly regulated who could own weapons.  Then along came a Supreme Court 2008 decision called District of Columbia v. Heller (referred to in legal circles as Heller).  [A side note for non-attorneys: when a lawyer sees that v. between the names of the parties to a lawsuit, it customarily pronounced versus, and especially famous cases for brevity are discussed by the name of just one of the parties, i.e., Roe, Dobbs, etc. How Supreme Court cases get their names is too long a tale for this episode.] 

Moving along, Heller was authored by well-known opera lover and outspoken conservative, the late Justice Antonin Scalia who brought along four of his colleagues on the Court -- Chief Roberts, Alito, Thomas, and, sadly, Kennedy who had become considerably more moderate with passing years; that is, a 5-4 decision, as close as they can get. Heller discussed militias at length, parses virtually every word in the Second Amendment to death, and then decided militias actually had little to do with the actual proper meaning of the Second Amendment which -- in their not-at-all-humble opinion -- was to allow pretty much every self-respecting citizen to own a gun in the home for self-defense.  In other words, the Heller Court wrote militias right out of the Second Amendment. To his credit, Scalia specifically noted that this didn’t preclude cities or states from imposing reasonable restrictions on gun ownership. Machine guns or military hardware, for example, could still be kept out of private hands, and “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”  

Truly the floodgates didn’t burst open until 2022 in New York State Rifle & Pistol Association v. Bruen (shorthand name, Bruen), a decision written by well know luxury holiday guest Clarence Thomas and  joined by all of the conservatives on the Supreme Court, now holding a 6-3 majority thanks to Donald Trump and Mitch McConnell.  Bruen essentially kicked Heller to the curb and said Americans pretty much can own and carry a gun anywhere. The Court took the notion of constitutional originalism to an unprecedented and -- many will agree with me, absurd -- conclusion, holding that Second Amendment rights are just as sacred as First Amendment rights and can only be restricted by showing that in the history of this country -- especially around the time the Constitution was adopted (that would be June 1788) -- a particular comparable restriction might have been applied.  Now there’s the conundrum: today’s armory of personal carry weapons didn’t exist in 1788 so weren’t illegal then.  Indeed muskets and breech loaders were pretty much it; certainly no automatic rapid fire weapons.  

But the most glaring absurdity of trying to graft extreme originalism onto the twenty-first century is that in 1788 probably less than a third, and maybe as little as twenty-percent of the population was actually allowed the vote; over sixty percent (yes 60%) of the American population was either female or slave and had absolutely no say in what law or custom should apply in the new nation; of the remaining while male population, few owned sufficient property or could afford the widely exacted poll taxes. This is the core vice of trying to interpret law solely through a 250 year old lens. Bear this in mind before we worship at the temple of the founding fathers. For six of nine current Supreme Court justices to read and impose upon us the mind of the “founders” is hypocritical and offensive. They are not practicing originalism but creationim, and frankly they aren’t even very good at that -- often creating false historical narratives to support their contemporary right-wing views. (Yes, Mr Alito, I’m thinking of you.)

Nonetheless the Bruen court with its amazing recently enlarged crystal ball concluded that the founders put the Second Amendment in place to prevent restrictions on individual gun ownership, not to define the kinds of weapons people could keep going forward.  So in the future when Captain Kirk’s phasers are sold at Walmart, they presumably will be legal to carry down Main Street strapped to your hip or hidden under your shirt.   Interestingly a 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” Perhaps we will all be urged to take a gun to our church, temple or synagogue. Fortunately not all courts are compliant. This year the Hawaii Supreme Court unanimously criticized Bruen and upheld this state’s somewhat stricter anti-public-carry gun restrictions.  But no other state has yet followed suit.

Now the Supreme Court has a problem the six of nine would probably prefer not to have to deal with.  Along comes U.S. v. Rahimi where a convicted Texas drug dealer with a history of gun violence and also a conviction under a federal law designed to prevent domestic abuse is demanding his Constitutional right to keep and bear arms.  The lower court said, give him his guns: there was no prohibition against wife beaters owning guns in 1788! To say that the oral argument before the Supreme Court last November involved a lot of hemming and hawing by some of the conservative justices who had supported the Bruen decision would be an understatement.  Remember that in the history of the United States before the twentieth century assaulting one’s wife wasn’t particularly criminal; nor was drug dealing.  In 1886 Coca Cola truly contained cocaine and was marketed as a patent medicine.  How then to reconcile our “history” with the Bruen ruling and not open the floodgates for every violent criminal legally to get guns?  The betting is that the Rahimi decision, expected in June, will probably nit pick rather than clarify.  The judges probably won’t allow Mr Rahimi to get his guns back but also won’t seriously dig into the Bruen decision either.  They’ll latch on to some obscure loophole and hang their gunbelts on it to allow states to deny gun ownership to people convicted of violent crimes . . . for now.

None of this is likely to elevate respect for the Supreme Court, which currently is ranking somewhere around the level of used car dealers in public opinion. If nothing else, though, liberal me hopes that more and more people will appreciate that the choice of a President involves far more than just who tries to run the country for four years.  It can change our very lives, health and safety for generations because of the appointments Presidents make to the courts, high and lower.  

For today, though, no one is truly safe on our streets as long as every person is presumptively allowed to own and carry guns, especially with ridiculously large cartridge magazines, and even the most well-intentioned government is hamstrung in trying to mandate gun control. Ideally the Second Amendment ought to be repealed as hopelessly outdated or corrected to restore, I submit, its original meaning -- plainly extremely unlikely.  Otherwise until a future Supreme Court tosses Bruen and Heller in the historical dustbin, along with Dred Scott and Plessy v. Ferguson (two historic Supreme Court blunders, later rectified by subsequent Supreme Court action), we are all needlessly in jeopardy in almost every state in the country. Thank you, Supreme Court.

I’d be delighted to receive any feedback, including criticisms -- that’s what frank conversation can be all about -- and even suggestions for future discussions.  The main point, however, is to encourage civil conversation between you and your friends on what I see as important social and political issues. Please do invite at least one more friend to  join our slightly expanding circle.

Arne Werchick, after fifty years as a litigation attorney, pro tem judge, law writer and lecturer, former Presiding Arbitrator of the State Bar of California, and past president of the California Trial Lawyers Association, moved to Hawaii and lives with his wife Ruth and their rescue dog Topaz.  He can be contacted at liberalmind@werchick.com.