Examining The Second Amendment

Barking either side of this statement, “The Second Amendment Should be Repealed,” out loud can start a bar fight in many parts of the U.S. since passions are so strong on the issue of gun control.

The Uvalde massacre kept people on edge, and so did public pronouncements like that of Gov. Pete Ricketts that 18-year-olds should be allowed weapons like the killing instrument used against the kids and teachers in the Texas town (and the helpless folk at the Tulsa medical center just days later).

A lot of attention was focused on the landmark case of D.C. v. Heller, 554 U.S. 570 (2008), with partisans praising the majority opinion by the late Justice Antonin Scalia, which gave the green light to personal possession of guns, and the other side lauding, what they believed was the superior scholarship of the late Justice John Paul Stevens, who said, in effect, that Scalia totally misread the words of the Second Amendment.

It was Stevens, then retired from the High Court who wrote in the New York Times (March 24, 2018) that the Second Amendment should be repealed, as if America needed another voice to the debate punctuated by case after case of horrific mass shootings in just about every corner of the country.

No one can forget the Christmas-time slaughter by another teenager at Von Maur’s in the Westroads in 2007 when eight innocent shoppers were gunned down and another three wounded before the shooter took his own life.

 It is true that in the last 15 years hundreds of thousands—no, millions-- of words—many of them bombast—have been written and spoken on the sides of the gun issue, while the number of firearms in the United States has grown to some 400 million.

Ideologically, I’m inclined to side with the Stevens side (or much of it) because 1) I can’t for the life of me see what an ordinary bloke could possibly need with an AR 50, and, 2) much of the doctrine of originalism is a giant fraud perpetrated by people who are just louder and bigger scolds than more serious scholars (see e.g., Eric Segall, Originalism as Faith (2018).

It was the marvelous historian and constitutional scholar Sandy Levine of the University of Texas who declared that both Scalia and Stevens were guilty of doing the legerdemain known as “law office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record to support pre-determined opinions.

I taught for four decades that no constitutional right—not the First Amendment or the Fourth—is absolute, and the Supreme Court never pretended otherwise.  Even Scalia admitted a place for gun regulation in an oft-forgotten part of the Heller majority.  Gun slaughter has gone so far that even zealots have to admit that Scalia was correct to allow regulation to protect the innocent.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.