After the horrific massacre at Robb Elementary School in Uvalde, Texas, that left 19 children and two teachers dead, America’s outrage and desire to stop the carnage from gun violence is illustrated in a new Politico poll that finds nearly 70 percent of Americans support a ban on AR-15 type weapons, and 84 percent support banning sales of guns to people whom mental health officials have flagged as dangerous.
A 5-4 conservative court essentially rewrote the Second Amendment to create a right for individuals to posses a gun.
But even if such laws were to be enacted — on either the federal or state level — there’s one big problem: the 2008 U.S. Supreme Court decision District of Columbia v. Heller, in which the court, in a 5-4 decision, essentially rewrote the Second Amendment to create a constitutionally guaranteed right for an individual to possess a gun. Numerous local, state and federal laws drafted to reduce gun violence and save lives have been struck down by federal courts because they violate Heller. Just last week, in a 2-1 ruling in the 9th Circuit Court of Appeals, two Trump-appointed judges cited the Heller decision and struck down a California law that banned adults under the age of 21 from buying semi-automatic weapons. Any new laws that limit access to weapons will likely meet the same fate.
That’s why we need to make overturning the Heller decision a rallying cry the same way the right made overturning Roe v. Wade its mission. Even though there are some who say the Second Amendment should be repealed, the amendment itself is not the issue. The issue is the GOP-controlled Supreme Court’s rewriting of that amendment in Heller. You don’t need to be a lawyer to understand that the Second Amendment was never intended to provide an individual a constitutional right to possess a gun. The language of this one sentence amendment could not be more clear: “A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The amendment connects the right to bear arms to a well-regulated militia, and between the ratification of the Bill of Rights in 1791 to the Heller decision in 2008, no federal court ever interpreted it as codifying an individual’s constitutional right to have a gun. To the contrary, in 1939, while considering an appeal by a person convicted of violating the National Firearms Act, the Supreme Court ruled that unless the weapon had “some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
James Madison drafted the Second Amendment, and in his notes from the 1789 Constitutional Convention, there’s not a single mention of an individual’s right to possess a gun for self-defense or recreational use. If the framers wanted to create a constitutional right to gun ownership, then they would have made the Second Amendment a mirror of the First Amendment. Just as they wrote that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” they could have written, “Congress shall make no law prohibiting the right of the people to keep and bear arms.” Why didn’t they? Simple. They were expressly tying the right to bear arms to militia service.
It’s time to be blunt: Heller was a political decision, not one based on a good-faith reading of the Constitution. The National Rifle Association and the GOP had been working behind the scenes to achieve this result for decades, as detailed by a 2014 Politico magazine article titled “How the NRA Rewrote the Second Amendment.” However, while the NRA and GOP may have been the ones behind the scenes lobbying future Supreme Court justices with “scholarly” papers and think tanks arguing that there’s an individual constitutional right to posses a gun, it was the late Justice Antonin Scalia and his four fellow Republicans on the court that made it a reality with Heller.
During Justice Amy Coney Barrett’s Supreme Court confirmation hearings in 2020, she argued against the idea that Roe was “superprecedent,” meaning that it should never be overturned. She argued that “superprecedent’ status applies only to cases “that are so well settled that no political actors and no people seriously push for their overruling.” That’s why we need to start openly demanding Heller be overturned so that it can never be considered “superprecedent.”
Every week, the United States averages about 10 mass shootings where four or more people are shot or killed.
The danger the Heller decision poses is still very immediate. The conservative-dominated high court, based on the questions that were asked in oral arguments, are poised to strike down a New York state law that’s more than a century old that mandates people show “proper cause” to obtain a permit to carry a concealed weapon. If the court strikes down New York’s law, it will do so based on the precedent set by Heller. Of course, this is the same GOP-controlled court about to strike down Roe v. Wade out of a belief that states should be allowed to decide whether to limit or ban abortion; but it will gladly strike down state laws that ban access to guns. Again, these are not constitutionally based decisions; they are cravenly political.
Meanwhile, every week, the United States averages about 10 mass shootings, that is, in which four or more people are shot or killed.
The GOP always plays the long game, as we’ve seen firsthand with Roe. Democrats should do the same when it comes to saving lives from gun violence. Organizing around a demand that District of Columbia v. Heller be overturned is a start.