The NRA & GOP Broke America: How Many Dead Children's Voices Must We Hear?

The NRA, GOP and SCOTUS have made the Second Amendment of the Bill of Rights into such a suicide pact, drenching our nation with our own children’s blood.

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

-- Justice John Paul Stevens’ dissenting opinion in District of Columbia v Heller

Image by Anna from Pixabay

Yesterday, America experienced another horrific mass shooting, this time at the Super Bowl victory parade for the Kansas City Chiefs.

The state’s gun-loving governor, Mike Parson, apparently “ran scared” from the site of the shooting, according to witnesses.

We are literally the only country in the world that is experiencing this magnitude of gun crisis. Half of the guns in civilian hands in the entire world are here in the United States, so it shouldn’t surprise anybody that the leading cause of childhood death in the US is bullets.

That slaughter in Kansas City followed by a few hours the release of an AI-generated message from the grave, sent to members of Congress, in which now-dead children murdered in the Parkland, Florida school shooting six years ago speak bluntly about the lack of action. You can listen to the one from victim Joaquin Oliver here.

And that followed by a week a momentous unanimous decision by the Hawaiian Supreme Court. In that case, the justices reviewed all the rationalizations that five corrupt Republicans on the US Supreme Court had used to justify flooding America with guns in the notorious Heller decision.

The justices of the Hawaii Supreme Court went through Heller with a fine-toothed comb and found multiple inconsistencies, misrepresentations of history, and flat-out lies.

The opinion by the five Republicans on the US Supreme Court, they ruled, “distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit. Time-traveling to 1791 or 1868 to collar how a state regulates lethal weapons … is a dangerous way to look at the federal constitution.”

A state supreme court unanimously challenging the US Supreme Court is a big friggin deal! Frankly, it’s surprising it didn’t get national news coverage.

The June 26, 2008 Supreme Court decision in the case of District of Columbia v. Heller was a major and pivotal turn in America’s understanding of the Second Amendment. It was also a substantial rewrite of the Second Amendment, both in detail and in rewriting its very history.

As the historical record clearly shows, the Second Amendment was created to satisfy two constituencies and had virtually nothing to do with the Heller finding that there was an “individual right” to gun ownership in the United States. So who were the groups who pushed for this particular amendment to the brand-new constitution?

The first was what would become the faction, led by Jefferson, who were concerned that if the country maintained a standing army during times of peace, members of that army might conspire to overthrow the new government the Founders had just created (something that happened frequently in history, around the world, from ancient times to today). 

The second constituency was the representatives of the slave states, who were concerned that the Article I, Section 8 authority of the federal government to call up an army might end up freeing slaves in the process, and they wanted to protect their state militias, which were largely then known, in those slave states, as “slave patrols.” 

But in 2008, in a squeaker 5-4 decision, Justice Antonin Scalia stretched logic and fantasy to the breaking point to “discover,” for the first time in nearly 230 years, that there was a secret “private right to gun ownership” to “defend hearth and kin” buried deep within the Second Amendment. 

Scalia’s first argument was that the Second Amendment’s use of the phrase “right of the people” to keep and bear arms meant to give everybody in the US the largely-unlimited right to gun ownership, just as the First and Fourth Amendments, respectively, protect everybody’s right to free speech and privacy.

This was the first time in the history of the United States that any court — or any branch of government, for that matter — had suggested such a thing.

Thus, in the dissent written by Justice Stevens and joined by Justices Breyer, Souter, and Ginsberg, they note that Scalia’s new theory about the Founders’ intent was, essentially, nonsense made up to keep happy the hard right and the gun lobby that so richly supported and funded the GOP. 

“The centerpiece of the Court’s textual argument,” Stevens and his colleagues wrote, summarizing Scalia’s argument, “is its insistence that the words ‘the people’ as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments.”

Stevens then takes apart Scalia’s argument:

“But the Court itself reads the Second Amendment to protect a ‘subset’ significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to ‘law-abiding, responsible citizens.’

“But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.”

Scalia also argues, in the absence of any evidence whatsoever from the time of the Amendment’s ratification, that the 2nd Amendment was passed to allow individuals to own guns for self-defense (which was the essence of the Heller case, as DC had forbidden people from owning guns even for that reason), rather than a purely military/militia context. 

Stevens, et al, in their dissent (which, but for one Republican-appointed justice, would have been the majority decision), argue back that:

“The stand-alone phrase ‘bear arms’ most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.

“The Court’s [Scalia’s] objection is particularly puzzling in light of its own contention that the addition of the modifier ‘against’ changes the meaning of ‘bear arms.’”

They add, quoting a previous Supreme Court decision on the topic:

“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against.’”

Stevens and company continue:

“When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. …

“Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as ‘elevat[ing] above all other interests’ ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’”

Even a previous Supreme Court Chief Justice, Nixon appointee Warren Berger, called the idea that the Second Amendment conferred an “individual right” to gun ownership a lie. Explicitly, he called the idea being promoted back when he was on the Court, “a fraud on the American public.”

An early draft of the Second Amendment shows this brightly: it included a conscious objector provision for Quakers, letting them opt out of the militia. It read: 

“A well regulated militia composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

In fact, through the entirety of James Madison’s notes on the 1787 Constitutional Convention, when military service and gun ownership were extensively discussed and debated, there is not even one single reference to an individual right to own a gun “to defend hearth and kin.”

It’s interesting how Scalia used his “hearth and kin” language, which is similar to that in common usage in 1787, to invent his version of early American history: no doubt it caused many people to assume it was a direct quote from one of America’s Founders, when, in fact, no such phrase exists in the historical record.

A deep dive into the 1788 Convention in Virginia, where that state’s legislature debated ratification of the Constitution, finds that debate took a huge sideways turn into editing what would be the 1791-ratified Bill of Rights in part because “father of the Constitution” James Madison was a Virginian and representative of that state to the ratification convention.

The word “nation” was modified to “state” and the religious exemption was deleted, but there was, again, not a single word about those Second Amendment rights being for individual gun ownership, even to defend a home’s fireplace (hearth) or relatives (kin).

Instead, Patrick Henry pontificated at length about the importance of protecting state militias, aka slave patrols, to defend his plantation and those of his fellow Virginia slavers from revolts by people he had enslaved.

Again the next year, in the summer of 1789, when the Bill of Rights was being debated in the US House of Representatives prior to presenting them for final ratification by the states, they held extensive discussions about the need for each state to raise a militia and fund it themselves, and whether guns should be kept at home or in an armory. 

They even debated the Quaker’s religious exemption and finally agreed to include it in the Second Amendment — this was really more a debate about that century’s version of a military draft — but there was not one single word spoken in the entire month of debate about “hearth,” “kin,” or anything resembling an “individual right” to own a gun for hunting, sport, or even self-defense.

Similarly, at the time, gun control was widespread from cities on the east coast to the Wild West. Tombstone, Arizona, for example, had a strict law that all guns had to be checked with and stored by either the sheriff or the Grand Hotel. Wyatt Earp and Doc Holliday were outlaws, not heroes, until the fiction writers got hold of their story; both were charged with murder (and the shootout happened in a “narrow alleyway,” not the OK Corral of fictional legend). The judge even “fined one of the victims $25 earlier that day for packing a pistol.”

So how did this “fraud on the American public” begin and end up before the Supreme Court? 

The story is, at its core, all about an industry willing to spend millions to expand their profits, and a political party willing to frighten American gun owners for purely political purposes.

As Michael Waldman points out in a seminal and detailed 2014 article for Politico, as recently as 1972, Richard Nixon ran for re-election on a popular (90%) and Republican position of gun control, particularly over “cheap handguns.”

In 1980, however, Ronald Reagan was the first presidential candidate to be endorsed in the history of the NRA, in part because of his position that there should be no federal regulation of handguns. As the Republican Party platform said that year:

“We believe the right of citizens to keep and bear arms must be preserved. Accordingly, we oppose federal registration of firearms.”

But the NRA, taken over in the early 70s by hard-right/Libertarian ideologues, was just getting started.

Seeing the reconsideration of the Second Amendment as their ticket to power and riches, the NRA began funding scholars and think tanks across the nation, looking for the magic bullet (pun intended) that would give them and their manufacturers an absolute Constitutional cudgel to use against the majority of the American public who favored reasonable gun control.

Their first argument was that the Second Amendment was passed, bizarrely, so that the early colonists could wage war against their own government just like they had the British, if that government ever became “destructive,” to use the language of the Declaration of Independence: 

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”

But that assertion completely contradicts history.

The only major rebellion against the new United States government happened in 1787, when Daniel Shays led 4,000 armed men to Springfield, Massachusetts to try to seize the armory to challenge the US government. Shays’ Rebellion was put down by the Massachusetts Militia, leading to charges of rebellion against hundreds, the death sentence for 18 men, and the hanging of two.

Nobody — literally not a single member of the Founders or Framers of the Constitution — suggested they had a “Second Amendment right” to armed rebellion as the NRA now argues.

George Washington, who would later lead troops (as a sitting president, no less) to put down the 1794 Whiskey Rebellion, wrote to Henry Lee of Shays’ Rebellion: 

“You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. Influence is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once.”

Colonial history is littered with stories of smaller rebellions, all led by well-armed citizens wanting to rebel against their new government, and every one of them was successfully put down by members of the Founding Generation.

Nonetheless, the NRA was committed to promoting the idea that the Founders actually wanted Americans to view their government with a jaundiced eye, ever-ready to rise up in armed revolt.

They advanced the “right of rebellion” as the rationale (with no substantial evidence whatsoever) so effectively that today, whenever I bring up gun control on my nationally-syndicated radio/TV show, people call in to promote the idea that they need their guns in case the government ever becomes “oppressive.”

From there, the NRA’s and GOP’s logic proceeded to the idea that, in order to preserve the right to overthrow America’s government (and to protect “hearth and kin”), all Americans had an “individual right” to own the gun of their choice. 

While there is no such language in the Constitution or Bill of Rights, and none of the Founders ever endorsed such an idea at law, between NRA publications, op-eds, well-placed talking heads in the media, and the GOP’s endorsement, the idea of this newly-promoted “individual right” (the first time Waldman could find it mentioned was in 1960) in the Second Amendment became so well entrenched in public consciousness that it wasn’t shocking to the American electorate when it was “discovered” there by the Supreme Court in the Heller decision in 2008.

But now, thankfully, the Supreme Court of the State of Hawaii has pushed back, and done so vigorously.

The State v Wilson decision by the Hawaiian Supreme Court identifies many of the inconsistencies and outright lies that Scalia and his four Republican co-conspirators on the Court used to “discover” an “individual right to bear arms” in the Second Amendment after it had been “hidden” for over two hundred years of American history.

Hopefully, their courage and independence will inspire other state courts and legislatures to similarly challenge Heller and the Republicans on the US Supreme Court, including their even worse decisions two years later in McDonald v. Chicago, and  in 2022 with New York State Rifle & Pistol Association v. Bruen. All were decided 100% by Republicans on the Court.

In Justice Robert H. Jackson’s dissent in the 1949 Supreme Court decision Terminiello v. Chicago, he wrote that “if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Now it’s happened. Five corrupt Republicans on the US Supreme Court have made the Second Amendment of the Bill of Rights into just such a suicide pact, drenching our nation with our own children’s blood.

However, if enough states openly challenge the Supreme Court it may help bring about a needed sea-change in public opinion and force Congress to override these absurd decisions by the Republican majority.

A great start would be to repeal the Lawful Commerce in Arms Act, which George W. Bush and congressional Republicans (with a small handful of Democrats) put into law in 2005 to prevent victims of gun violence from suing gun manufacturers.

These manufacturers and sellers of weapons of war are literally the only industry in America with this sort of immunity from liability or responsibility for their products.

The blowback against the GOP’s Heller decision is starting to pick up. Join the cause and pass it along.