For better or worse, we will not be discussing Sting (or his creepy fixation on school-age girls, ESP given his former teaching career) during this installment, though we will be touching on the Police (haHAAAA!!!). Last month, in the span of a few days, we heard stories of four, unarmed young people making innocent mistakes and consequently being shot. The three shooters were in three different states, were all men and older than their victims, and were all—potentially—legally innocent in resorting to deadly force due to gun laws and “stand your ground” defenses.

So, in a two-parter here, we’re going to talk about those Stand Your Ground laws and the Second Amendment.

A bit on the cases, at which we’ll look more closely in the next installment. Ralph Yarl, a Black teenager, was unarmed when he went to the wrong door in Kansas City to pick up his younger brothers. He didn’t even cross the threshold of the house. The homeowner, an 84-year-old white man, still shot him in the head. In Texas, two cheerleaders approached the wrong car (they thought it was theirs) in a grocery store parking lot after practice. The man in the car shot them both. One girl is still in critical condition. Finally, a 20-year-old woman named Kaylin Gillis pulled into a driveway in upstate New York after taking a wrong turn. She was shot and killed by the old, white, male homeowner.
Obviously, each facet of our pro-gun legal landscape is uniquely upsetting; and the reason why these three stories’ confluence made headlines was their common theme of new, strange, messy Stand Your Ground laws.

It’s hard to contemplate this current culture, however, without taking a look— agape— at how the Second Amendment became the unimpeachable, ironclad behemoth it is today. Plus, hey, why wait til the next mass shooting to talk about the Second!? In the ol’ U S of A, there’s always a relevant and horrific news story to reintroduce the convo.

The Second Amendment: Well? Regulated? Militia?

Though late to its national stardom, the Constitution’s Second Amendment has a strange and storied jurisprudential history. For how frequently and heavily it’s now relied upon, its interpretation was considered settled for the two centuries of its constitutional life—and that interpretation did not include any individual right to bear arms.

I’ll start by letting the bizarrely composed amendment speak for itself, verbatim:

“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.”

What it lacks in hyphens (not well-regulated? C’mon!) it certainly makes up for in commas. Many, including the late Justice Scalia, could agree that the amendment is inscrutable, and its formation unique to the Constitution.

In addition to begging questions like… what’s up with all the commas, and what’s the subject of the sentence, & thus the right granted? …It sure seems like the subject is (sic. incoming, I am supplying the gd hyphen) well-regulated militia.

We’ll take one more step back now (like one o’ them ‘Zoom’ books) to look at the interpretive tools used on constitutional amendments. To clarify inscrutable legal text or apply that text to new contexts, we must sometimes consult certain extrinsic sources that’re best equipped to elucidate meaning. These canons can include other provisions from the same document, records or authorities, dictionaries, legislative history, prior applications of the laws, and the Constitution’s more verbose contemporaries.

You can likely guess where this is going-- such efforts at interpretation can get, unsurprisingly, really subjective and exploitable. That’s especially true when (a) none of those^ clarifying sources exist, or (b) none of those are relied upon by political zealots who’re motivated to cherry-pick in support of their existing bias.

Conservatives who have made it to the highest Court in recent decades have a few interpretive schools of thought, which they call “textualism” and “originalism.” With this nomenclature, the semantic propaganda has already started.

By calling themselves “textualists,” who purport to rely first and foremost on the Constitution’s text, conservative jurists belie the fact that all constitutional scholars are often forced to consult other sources when the Constitution’s terse text (looking at you, Second Am.) fails to resolve interpretive conflict on its own.
Then you have “originalism,” which was the other (ironically, very new, circa 1970s-80s) jurisprudential school of thought responsible for rebranding the Second Amendment. The falsehood of the “originalism” flag was more adeptly explained by a certain constitutional scholar, of whom I am a big fan. Terry Brennan (my late dad) wrote:

“Constitutional interpretation justified by certain preferences of its enactors is variously labeled… ‘original intent,’ ‘original understanding,’ or ‘original meaning,’ depending in part on the optimism, credulity, or political preference of the observer.”[1] In other words, disguising your own radical biases with an irreproachable name like original intent, implying solemn historical accuracy, is a lot like calling your fascist government the people’s democratic republic.

Ironically, there’s ample evidence that the “originals” themselves, the Constitution’s framers, didn’t want their intent or interpretation to be fixed and used to inform future meaning. The Constitution was meant to be a living document! In fact, the Constitution’s author Thomas Jefferson directly addressed how to interpret old laws (TJ had serious foibles of his own, but did do some good foundational document drafting, all things considered).

“[L]aws and institutions must go hand in hand with the progress of the human mind,” quoth TJ, “as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and opinions change, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestor.”

So, keep that quote in your back pocket to deploy next time some crusty old bigot waxes on about gays or women or whatever. I certainly do.

You may ask: wouldn’t all this ~chaste originalist 1780s spirit~  help when looking at the Second Amendment, by at least limiting the type of firearms supposedly protected? After all, a musket took like, multiple minutes to reload. Good question, I would respond, but you are of course WRONG because the People’s Republic of Originafornia is buttressed with bad faith, not logic!

In any case, that’s our introductory foray into the thinking that our conservative-leaning SCOTUS has relied upon to retool and expand the Second Amendment over the last 15 years, from 2008’s D.C. v. Heller to 2022’s NY State Rifle & Pistol Assn. v. Bruen. We’ll come back to these cases, as they’re the most direct facilitator of lax gun laws, and thus shootings themselves.

But before we do, how did the gun movement, the thinking, the money get to the political place that motivated the Court? Is this really just our endemic national culture?

… No.

The N R A [2]

While it’s become inexorably clear in recent years that the National Rifle Association, or NRA, has blood on its hands, it’s interesting to look closely at the org’s provenance.

The NRA originated for Union soldiers’ (hah) target practice in the Civil War; its founder was actually (double hah) a New York Times reporter. After the war, it swiftly pivoted to even more apolitical work, like gun safety training for boyscouts and outdoorsfolk. There the NRA languished, with dwindling relevance and funding until facing a necessary rebrand by the 1970s, during which they actually considered removing the “Rifle” from their name altogether.

This brings us to a contemporaneous moment: California, 1970s, where there had been (in shocking news) several high profile police shootings of Black men. The Black Panthers, in a strategy to fight back, began reading up on state and local laws, exercising awareness of their rights as citizens, and arming themselves—citing the Second Amendment to undergird their right to own and use firearms in self-defense.

This movement made white conservatives & other racists very scared at the prospect of Black Americans wielding any power (as always). And as we know, fear turns to anger and aggression in all the emotionally stunted.

I-flippin’-ronically, conservatives thus positioned themselves against the idea that the Second Amendment contained any individual, civilian right to carry/own firearm(s). This led to the introduction of the Mulford Act in California, which codified that interpretation in response to the Black Panthers. There’s an exquisite soundbite of then-CA-Governor Ronald Reagan saying as much. But the times, they were a-changin’.

As we explore this history, its relevant to again underscore the disparate responses—not just by the government and law enforcement bodies, but the NRA as well—to gun rights among different races. Of course, it is not new news that Black and Brown Americans carrying guns, or even “suspected” of doing so, are more likely to be seen as a threat and a justification for deadly force. Perhaps less familiar examples of this bias are found in what the NRA hasn’t done, which is defend victims of color who are armed, or disclose owning a legal gun not on their person, or are carrying a toy gun, etc., and are then killed by police. These victims are NOT posthumously defended as good American gun-owners by the NRA. In these cases, there is no organizational outcry (as there would be with white gun-owning victims).
In short, should anyone doubt the institutional racism of the NRA (especially given the Second Amendment’s ironic Black Panther connection) and the gun rights movement at large-- see any all stories about gun-owning but indefensibly killed Black victims of police or societal violence. Since our examination here will eventually reach yet another racist killing, this time of an unarmed Black child and further facilitated by lax gun laws, this point bears repeating in the Second’s history.

Anyhow, we left our anti-heroes (it’s me, hi) somewhere in the end of twentieth century opposing 2nd am individual right to firearms. At the time, that had been the prevailing interpretation of the Second Amendment for centuries! That may be hard for today’s audiences to grapple with, since modern culture doesn’t really feature “state militias” in the way late-1700s culture did. Indeed, before the Reagan-era pivot, the Second Amendment and these antiquated concepts were kind of seen as being akin to the Third Amendment, as obsolete as the protection against quartering soldiers.

Then, conservatives did an abrupt 180 flip.
By the time once-CA-governor, individual-arms-right-disavower Ronald Reagan ran for president, the actor without any serious policy chops had made a proverbial deal with the Devil. In “the Devil,” read: the fundamentalist religious Right and its myriad socially conservative lobbies; and the deal involved appeasing their policy demands to win the election (and consequently decimating social policy to this day but I digress).  

The NRA felt this tide turning amidst their rebranding effort, and they too leapt on the opportunity to ride the radical political movement’s financial wave. The utter ideological inversion makes no sense, except when you consider the principles (such as they are) undergirding modern conservative beliefs—not logic, but racism, fear, isolation paranoia, and other-ism.

Other shoes dropped quickly from there.

1991 landed (refraining from further commentary here) gun-enthusiast Clarence Thomas on the Supreme Court. In 2000, President GW Bush’s Attorney General, John Ashcroft, was a Big Gun Guy. AG Ashcroft issued an unsolicited Justice Department memo (a non-binding, but persuasive, guiding document on how a President’s Justice Department intends to interpret and apply a law—usually one newly in question or unclear, but…). The memo pretty unceremoniously declared that the Administration recognized an individual gun right in the Second Amendment.

D.C. v. Heller

Thus came we to Heller.

The Supreme Court took up this NRA-sponsored challenge to a Washington, D.C. law banning handguns in 2008. Initially, the NRA (and their co-sponsor the Cato Institute, a libertarian thinktank) struggled to find a plaintiff with appropriate “standing.” Standing is a constitutional requirement for getting through the door of any courtroom—it requires that the party bringing a case have a tangible, personal stake in the outcome, to have been personally injured more substantially uniquely than say…an average taxpayer’s “injurious stake” in where tax dollars go (which would affect people equally, more indirectly and passively).
The search for plaintiffs to challenge the D.C. law yielded plenty of fine, upstanding citizens from different backgrounds, interested in representing the pro-gun side of the case-- but none of those folks had an justiciable injury sufficient to get standing. For most of them, the law’s impact was all just conceptual and prospective: I want a gun but can’t get one. That wasn’t a tangible injury; there wasn’t enough immediate, distinctively personal harm that could be shown.

Ya know who did experience personal consequences due to the D.C. law, at least sufficient to get standing? Dick Heller!

Here is his sad tale:

D.C. resident Dick Heller had a precious baby gun of his own; he loved it so. He said it looked like a cowboy gun! He said he liked to “caress” it. When the D.C. law passed, Heller was forced, injuriously!, to take that sweet little gun all the way to his brother’s home in nearby Maryland, where it could live in freedom, frolic with the other guns, etc.
Dick Heller couldn’t keep his gun at home, and instead had to visit it across state lines (this is real, he really said he visited it). Due to this star-crossed infatuation, he sought to license the gun in D.C. and received a formal rejection from doing so, based on the new law.  

So uh, voila I guess, standing for D.C. v Heller to get all the way up to the U.S. Supreme Court, and infamy for rootin’ tootin’ Dick Heller.

(Dick Heller is also a virulent racist. Never woulda guessed. A story for another day— check out ‘The Gun Show,’ info in the footnotes below.)
The D.C. v Heller decision was a massive legal step towards the pro-gun direction, in which America still careens.  It overruled precedential, militia-focused interpretations of the Second Amendment dating all the way back to the Constitution’s drafting (doing so all in the name of ‘original intent.’ hahahaHAAA). In the 5-4 majority’s decision, Justice Scalia declared (without citing any of that famous ‘textualist’ or ‘originalist’ evidence) it “very clear” that the operative phrase in the Second’s text was the portion here bolded:

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.

Just looking strictly at the text, the words in front of us in total isolation (a textual approach, if you will) you can… certainly debate the “clarity” of his conclusion.

But there you had it—with those strokes of the proverbial pen, the Second Amendment took on an individual right to bear arms in 2008.

Heller still qualified that there was a limit to the Second Amendment. It didn’t hold that state or federal laws could never regulate the where, how, and who of gun purchases. It left room for legal limits on things like type(s) of guns, licensing, timing, locations and ownership qualifications. In other words, Heller didn’t establish an absolute right—and fair enough!

The same goes for all Bill of Rights-rights, like speech, often based on the whole “my right to swing my fist ends where your nose begins” idea. Your freedom can be limited when/where it may affect others’ freedoms.

We will leave part 1 here, on this ominous note. Can you guess what further step was taken in last year’s banner guns case?

Next time: SCOTUS 2022’s NY State Rifle & Pistol Assn. v. Bruen, and Stand Your Ground laws.

[1] Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent,” 15 Harv.J.L. & Pub. Pol’y 965-1029 (1992).

[2] Thanks are due here to a 2017 episode of NPR Radiolab’s “More Perfect Union,” entitled “The Gun Show.”