Death is human cost of misreading 2nd Amendment

Two weeks ago, the U.S. Supreme Court agreed to hear an appeal of a circuit court decision overturning Washington, D.C.’s restrictive gun ban. Three days ago, Washington Redskins Pro Bowl safety Sean Taylor was shot in his Florida home. He died in a hospital on Tuesday.

The two events are not directly related. But each offers a way to understand that the sheer availability of guns in America affects the lives of citizens every day. When the Supreme Court hears arguments in the case Washington, D.C. v. Heller, it will debate the meaning of the convoluted words of the Second Amendment: “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.” They will analyze that dry, distant clause written more than 200 years ago and determine whether or not it protects an individual’s right to own and carry a gun. But in their legal analysis, we should hope that they keep Taylor’s tragic death on their minds — a reminder that the decision of the Supreme Court could, in this case, be a matter of life and death for hundreds of Americans whose stories won’t make the front page.

There are a number of textual and historical reasons that the Second Amendment should be read as protecting the rights of militias — rather than those of individuals — to own and carry weapons. The very concept of a well-regulated militia is central to the text of the amendment. The man who shot Sean Taylor is almost certainly not a member of any militia. Nor, for that matter, is Dick Heller, the appellant in D.C. v. Heller. The militia, as the framers of the Second Amendment understood it, has virtually disappeared today. Yet those words remain in the Constitution, a reminder to John Roberts, Antoin Scalia and Clarence Thomas that the Second Amendment does not simply read, “The right to keep and bear arms shall not be infringed.” Such a reading would be convenient for everyone who wants to keep a loaded gun in his or her house despite evidence that the gun is more likely to be used against a family member than an intruder. But such a reading would allow a majority of our tiny, un-elected Supreme Court to ignore the words and intent of the Framers.

If the Supreme Court decides next year to read the words “well-regulated Militia” out of the Constitution, it would join an undistinguished line of previous courts that chose to ignore the original words of the Founding Fathers in pursuit of narrow political goals or despicable prejudices. Previous courts willfully misread the Constitution and ruled that blacks can’t be citizens (Dred Scott) and authorized half a century of Jim Crow (Plessy v. Ferguson). The stakes next year are lower. If the Court tears the first clause from the Second Amendment, it will severely restrict local legislatures’ ability to pass laws protecting their citizens from gun violence. It will make it much more difficult for states to keep guns off the streets. In the long term, a decision limiting the ability of states to regulate firearms will pave the way for more Sean Taylors.

The Court has not addressed the Second Amendment for almost 70 years. Instead, the Supreme Court has allowed state and local jurisdictions to make their own decisions about guns. And even without an overly broad reading of the Second Amendment from the nation’s highest court, restrictions on individual gun ownership have faced steep uphill battles against the wealth and power of the National Rifle Association.

If next year the Court were to put even more restrictions on the ability of local governments to protect their citizens, gun ownership would almost certainly spike not only in Washington, D.C. but all over the country. And, quite simply, more guns means more unnecessary deaths from gun violence.

Of course, the Court could make virtually any ruling next year. It could decide the case on a standing issue, saying that Dick Heller (a recruited plaintiff) had no right to sue. It could bless the D.C. gun control law — though given the makeup of the current court, this outcome seems unlikely. It could make some convoluted ruling that makes almost everyone unhappy. But the fact that the court agreed to hear the case signals that some change in our reading of the Second Amendment is coming.

When the Court’s ruling comes down next year, it’s unlikely to affect the personal safety of any of the Court’s members, or Charlton Heston, or most of us at Yale. But we need only to look at a highly publicized story about gun violence to remember that the words of the Constitution — and the way they are interpreted — can change whether or not a deadly shot is fired. The way the Court interprets the Constitution could prevent the next Sean Taylor tragedy.

The human cost of the ruling in D.C. v. Heller will likely be far from on the mind of the justice writing the majority opinion. But it shouldn’t be.

Xan White is a junior in Pierson College. His column runs on alternate Thursdays.

Comments

  • Anonymous

    The author of this article obviously failed to research the history of 2nd Amendment decisions by SCOTUS.

    "In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Chief Justice Taney argued if members of the African race were "citizens" they would be exempt from the special "police regulations" applicable to them. "It would give to persons of the negro race…full liberty of speech…to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

    Xan what part of keep and carry arms wherever do you not understand?

    He further needs to read the Civil Rights Act of 1866 and the resulting changes it dictated in state laws.

    "The CRA of 1866 did away with badges of slavery embodied in the "Black Codes," including those provisions which "prohibit any negro or mulatto from having fire-arms." [CONG. GLOBE, 39th Congress, 1st Session, pt. 1, 474 (29 Jan. 1866)]

    It was not without opposition as Democrat William Saulsbury, Senator from the northern state Delaware added before voting against the bill;

    "In my State for many years…there has existed a law…which declares that free negroes shall not have the possession of firearms or ammunition. This bill proposes to take away from the States this police power…"

    Food for thought student White, food for thought

  • Anonymous

    You believe that if the Supreme Court upholds the court of appeals in overturning the gun ban that gun ownership in DC (and around the country) will drastically increase (and violence and death will follow)…do you consider, however, the proportion of violent acts carried out by people who illegally own guns, versus those who own them legally? Is someone who plans to use a gun to rob someone, harm someone or kill someone REALLY the kind of person who is going to be dissuaded from gun ownership merely by the existence of a gun ban?

  • Anonymous

    It is said the difference in opinions on gun control is one mugging.

    The nightly gun battles in DC amply demonstrate that stringent gun regulation would do nothing to disarm criminals. They only disarm the general law abiding public, increasing opportunity the armed criminal to go forth and commit crime.

    Were the author to live in, say, southside Chicago in daily fear of being assaulted, the naive views expressed would quickly mature and justify the need for personal protection.

    US gun control started in the slave codes and continued through the black codes. Democrats, who led the way in slave ownership, in creating the KKK
    and who worked tirelessly to oppose civil rights legislation, are continuing to promote gun control policy that keeps urban poor black folks powerless and abused.

    That history and present practice is why many educated black folks are turning Republican and most uneducated black folks are still pulling the lever for the liberal jackasses. Condi Rice, Clarence Thomas and Michael Steele are intelligent, hardworking and a credit to any race or nation. Jesse Jackson and Al Sharpton are shameless opportunistic hustlers and a discredit to any race and nation.

    Democrats can only keep the black vote by lying, just like they did when they told the slaves how bad it was off the plantation way up north.

    Giving urban blacks the same access to guns that their country cousins have will be the first time the black race will be trusted by the government. It is high time.

    The Democrat party is the modern day plantation for black folks.

    I will be pleasantly surprised if the censors of this post respect free speech and differing opinions enough to allow this comment through unedited.

  • Anonymous

    The right to self defense is a fundamental right. If Mr. Taylor had responded to his home intruder with a firearm instead of a machete, he might still be alive, and the criminal dead. The idea that a person does not have the *right* to confront a criminal in his bedroom in the dead of night with lethal force is what is repulsive.

  • Anonymous

    This article is intellectually lazy. First and most importantly, you make it pretty clear that you have no idea what the second amendment actually means. Yes, you've read the text of the amendment, and you even give a cursory nod to the former presence of American militias, which you presumably provide to enlighten us on the history of the Constitution. Do you, based on your level of knowledge, really feel as if you "know" whether the handgun ban is constitutional? The fact that you (a) don't respond to any potential counterarguments (in fact, you don't even acknowledge what those arguments are), (b) fail to indicate any knowledge of Second Amendment precedent, or the extent to which the courts have historically protected gun ownership as a class of specially protected items under the constitution, and (c) form poorly-drawn comparisons to historical cases indicates that you haven't a clue.

    This issue is far more difficult than you seem to think. Even Professor Tribe, by no means a conservative, has recently stated that he believes the second amendment DOES give an individual the right to own guns, based on his own research. What I mean to say here is that for any serious judge or commentator, it takes more than your lazy, 3 second reading of the statute to determine what it really means.

    I think what you should have argued, and what you really wanted to say, is that the Second Amendment is archaic. That is, that it no longer has a viable purpose. This is a completely justifiable position to take, even if it's not as directly related to the Heller case as you'd like. But instead, you offer an uninformed, "plain text" reading of the amendment with no knowledge of the arguments that might be advanced by those scholars and commentators who do think the Constitution protects the individual right to own guns.

    I think there are good arguments that support your position that banning individual gun ownership is constitutional. Your lazy reading, however, fails to persuade. Sean Taylor's death is a terrible tragedy, but it belongs nowhere in your discussion of constitutional law.

  • Anonymous

    If the Court says keep your guns then we should limit and regulate ammunition sales!

  • Anonymous

    Don't be too hard on Xan. He's a junior in college, and not even a law student.

  • Anonymous

    I fail to understand the correlation the author creates between limiting the availability of firearms to law-abiding citizens and a decrease in the availability of firearms to criminals.

    A criminal--by definition--breaks laws. What law/jurisprudence has EVER stopped a criminal from breaking the law?

    Limiting the firearms-ownership rights of law-abiding citizens due to fear of criminals is no different from limiting the privacy rights of law-abiding citizens due to fear of terrorists.

  • Anonymous

    The second amendment protects citizens against a tyrannical government. It is an essential check on the power of government that citizens have the right to bear arms.

  • Anonymous

    I am sorry, but how can Taylor be cited in support of, or opposition to, gun control, given that we don't know anything about his killer(s) yet? The comment is nothing more than an expression of the author's assumptions, rather than a discussion of facts. For all the writer knows, Taylor's killer bought his weapons illegally.

    Maybe a better case to keep in mind is the Stacy and Drew Peterson case. That might remind you that the people officially in charge can be the law-breakers themselves. Of course, we don't know that Drew Peterson killed his third or fourth wife, but we have a better idea on that question, than whether Taylor's killer had a legal weapon. It highlights the fact that if you give government a monopoly in gun ownership, you give them the monopoly on power, too. Then American politicians will start to worry about what this general or that one thinks about the current administration, with an eye toward a possible coup. The right to bear arms is one of the things that separate us from a banana republic.

    All of this is premised on the utopian view that gee, if we just got rid of guns, no one would die. Given that 19 people killed about 3,000 people using boxcutters, I am not sure how persuasive that claim is. And that assumes that we can ever get rid of all guns. How often is it the same people who claim we can control the flow of guns into the US, simultaneously claim we can't stop illegal immigrants or illegal drugs?

    But all that misses the mark. the argument should not be about the societal effect, but the words of the clause. to believe that the 2nd amendment only applies to militias is to say that in the 2nd amendment, and only the 2nd amendment, the people means something other than you and me. either that, or you have to believe that the fourth amendment, 9th amendment and numerous other amendments and clauses are about collective rights, not invidual ones.

  • Anonymous

    Anyone ever checked to see what the malitia is:
    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are--
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

  • Anonymous

    Gosh, maybe we should just ban guns. Then, guns would be as rare in the U.S. as other banned commodities, like, say, cocaine.

    Oh, and what should I tell my chair-ridden 80 year old father when guns are banned? That he cannot keep that .357 magnum revolver tucked in his couch cushions, and that he should just offer whomever comes into his house uninvited a beer?

    Wake up. The peer reviewed criminology literature shows that there are ~ 1 million defensive gun uses per year. And that includes some single mothers, gays, the elderly and the infirm, and the poor.

    And yes, to echo what another poster said: personal and family protection IS A FUNDAMENTAL HUMAN RIGHT, and if you do not support that, then you are a human rights violator. And if you think that protection can be done without a gun, wanna teach my elderly dad to do Tae Kwon-Do?

  • Anonymous

    "And, quite simply, more guns means more unnecessary deaths from gun violence."

    Except for all the evidence to the contrary, of course:

    http://www.guncite.com/gun-control-killias-abstract.html

    http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=203876

  • Anonymous

    Sorry Xan, you need to take some history before you pronounce Mr Heller as not a member of the militia, every able bodied man who owned a gun was a member of the militia during the writing of the Bill Of Rights.
    Clearly, you have zero idea of the amount of scholarly evidence of "The Right Of The People". Did you know for instance that "The People" can assemble despite most States having an Assembly?
    Oh, and your headline is eye-catching but
    more in line with the tabloid press, really it is like saying "The Right Of The People" concerning free speech will lead to yelling theater in a crowded fire.

  • Anonymous

    It's funny how people think that every other ammendment in the constitution protects an individuals rights however the 2nd ammendment only applies to a Militia.

  • Anonymous

    Among this article's many egregious errors, some of them already noted in the above comments, is its failure to grasp that the term "militia" as used in and at the time of the adoption of the Second Amendment included all free adult males. In particular, "militia" did not refer to an analogue or predecessor of the "National Guard" or "state police." Arguments construing the Amendment's first clause ("A well regulated militia…state,") as restricting the Amendment's right-protection clause to the "militia," where that term construed as "National Guard" or "state police," are historically and legally empty.

    The Second Amendment, properly construed, protects a dangerous and disturbing and highly personal right. So does the First Amendment. So do most of the Amendments constituting the Bill of Rights. So what? Opponents of the Second Amendment should abandon their attempts to read it out of the Constitution. If it disturbs them or they don't like it, then they can work to repeal it. But they should give up the fatuous misreadings of history, language and research, such as what is contained in this article. It's just embarrassing.

  • Anonymous

    Judge Kozinski on the 2nd Amendment, in a blockbuster dissent:

    "All too many of the … great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

    "My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees*. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

  • Anonymous

    If the law against murder didn't save Mr. Taylor, how would a law against gun possession have saved him?

    Are we to believe that a criminal who ignores the murder statutes will otherwise pay heed to the state's regulatory schemes? That seems unlikely, doesn't it?

  • Anonymous

    I only have a problem with the idiot commenter who argued that "Democrats, who led the way in slave ownership, in creating the KKK and who worked tirelessly to oppose civil rights legislation, are continuing to promote gun control policy that keeps urban poor black folks powerless and abused."

    1. are you convinced that the 'Democratic' aka Democratic-Republican party in the 19th century, whose members supported states rights and de facto slavery is the same ideology behind today's Democratic party or that the Republican party of the 19th century, which supported anti-slavery and de facto power of a centralized government is the same pro-states rights, anti-liberalism party of today? Unlike you, many African Americans and other minorities are smart enough to know that rather than THE NAME of the political party, it's the ideology behind the party that matters.

    2. Great job finding 3 intelligent black people who support the Republican party. If you're wondering, the rest of the 'intelligent, hardworking' African Americans are supporting the Democratic party and many of them have an understanding of the complex implications of blindly supporting either party.

  • Anonymous

    You're missing the forest for the trees…

    I think you need to take a step back and look at the entire Bill of Rights as a whole. Every single part of the Bill of Rights secures the rights of everyone living in the United States. Forget everything else, it's basic common sense; the Bill of Rights secures the rights of everyone and applies to everyone equally. That's the whole point.

  • Anonymous

    Since no well regulated militia is involved in D.C. v. Heller, the case shouldn't even be considered a Second Amendment issue. If the people of Washington D.C. don't like their existing gun-control laws, they should elect different officeholders.

    When the people in the aggregate are not permitted to make their own laws, you wind up with the kind of thing that happened in 1776, with King George III and Lord North on one side and a lot of recalcitrant colonists on the other.

  • Anonymous

    Sean Taylor previously had a firearm with which to defend himself..he had used it in a previous altercation and the State ordered it taken away..hence when he really needed it he was disarmed at the order of the state..learn this lesson my young friend before you praise the virtues of universal gun control and the trampling of individual liberties as well as the God given right to defend oneself and ones family from harm.
    Mr Taylor learned this lesson the worst way imaginable.

  • Anonymous

    "Militias, when properly formed, are in fact the people themselves and include all men capable of bearing arms. […] To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them."
    -- Senator Richard Henry Lee, 1788, on "militia" in the 2nd Amendment

    "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
    --George Mason

    "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms…"
    -- Samuel Adams, in "Phila. Independent Gazetteer", August 20, 1789

    Any questions?

  • Anonymous

    The availability of guns to criminals, such as the one who murdered Sean Taylor, has nothing to do with the legality of gun ownership -- any more so than the legality of heroin and cocaine control their availability to criminals. Nor does it have anything to do with the ability of "children" in street gangs to get guns. The experience of Jamaica proves it.

    What it does affect is the ability of private citizens to deter, frighten, and kill criminals such as the one who murdered Sean Taylor. This is especially vital considering the very limited ability of police to protect us from street crime so long as the root causes of crime (such as racism, poverty and economic inequality) still exist.

  • Anonymous

    I take it that you don't like guns. That's fine, don't own one. Owning a gun is a right, not a duty.

    If you want to write about it, please research the topic first.

  • Anonymous

    This guy is in Yale??? Wow. OK, for starters let me be very elementary (apparently his public[?] education failed him): people have rights, governments have power, or also called 'authority', given to them by WE THE PEOPLE. Read the constitution, it is not that long. The 'People', as mentioned in the constitution, has the same meaning through its entire, it is an individual right. Betcha don't think the 'people' in the first, fourth, ninth, and tenth amendment are meant to be a collective right?! Talking about the tenth amendment, it actually differs between the 'states'(collective right), and the 'people (individual right). Go ahead, read it! Amazing how hard this seems to be to understand. The bill of rights (get it? bill of rights? *wink*wink*), the first ten amendments, were, btw, all ratified the same day.

  • Anonymous

    Aa Jewess in the US, I am HORRIFIED by the plans of these rogue "police"! Americans - time to put on your big girl panties and deal with it. This is why we Americans must ALL put our 2nd Amendment FIRST!

  • Anonymous

    TOTAL BS!!!!!!!!!!!!!!!!!!!!!!!!!!!

    If DC's gun laws are SO effective… why did they fail to protect Mr. Taylor???

    The truth is, we cannot *rely* on our government to protect us. In the extreme case, we may have to protect ourselves from the government.

    They only way we can protect ourselves is if we do not ban the tools necessary to do so.

    If Mr. Taylor had been packing heat, he might of had a fighting chance of staying alive. Because he didn't, he did not.

    It's better to pack heat and not need it, than to need it and not have it.

    A few quotes… some more cliche than others…

    "If guns are outlawed, only outlaws will have guns." - Anonymous

    "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Ben Franklin

    "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." - Thomas Jefferson

    The last quote is especially poignant. It underscores the fact that if you cannot trust an individual with a gun, why can you trust him with a vote???

  • Anonymous

    Okay this is a dumb comment, in favor of ignoring the second amendment:

    "When the people in the aggregate are not permitted to make their own laws, you wind up with the kind of thing that happened in 1776, with King George III and Lord North on one side and a lot of recalcitrant colonists on the other."

    Um, yeah, and just how far do you think our revolutionary forefathers would have gotten without guns?

    I mean seriously are you really arguing that if the Supremes don't listen to "the people" and do away with gun rights, then the people will rebel? With what? Plastic forks?

    What kind of orwellian nightmare are we living in when a person thinks they can cite the revolution as a reason to restrict gun rights?

  • Anonymous

    Where is the evidence that gun-control works? Both the CDC and National Academy of Science could not find any effect.

  • Anonymous

    The only thing correct about this article is the title. Misread the second amendment, and you start yourself down a very slippery slope where any and all human rights start to slip away. Soon, your rights enumerated to you in the constitution are gone, and you have no power to speak otherwise against your government, after all you just wished your rights away. Then what happens, you are at the mercy of your government who now wields ABSOLUTE power over your life. If the government decides it doesn't like you, then what?

    You are about as foolish as can be if you live in a society founded on freedom and you want to wish away a part of that freedom, just because it is "scary"

    The saddest part about this is that Yale produces kids with the same mindset as you as "Graduates", and they're automatically labeled to be "smart".

    Disgusting.

  • Anonymous

    If this guy actually went to Yale, he needs to get his money back. They didn't teach him anything about history, life or the Constitution. If Yale gave him these screwed-up ideas, he could have gotten the same "education" in North Korea or China for free.

  • Anonymous

    Dear "9:09am on November 29, 2007",
    You are wrong.

  • Anonymous

    Does this author actually think the 2nd amendment was meant to insure the military would have weapons? I ask that because he seems to equate militia with military. Wake up. Unarmed militarys have not been known to exist in human history. The weapons have changed, but militarys have always had weapons. Our founding fathers would not have wasted their time writing the amendment he is trying to defend. I think he must attend a poison ivy league school.

  • Anonymous

    Wow, the neocons are out in full effect on this article!

  • Anonymous

    I love the argument that we shouldn't have gun control because criminals break the law anyway…. well, then at least some of the people who own weapons would end up in jail! additionally, the type of weapons that existed when the 2nd amendments were written do not compare to what is on the streets now. Sure, everyone can have a hunting riffle… but why do you need semi automatic hand guns?

    I also don't think people realize how easy it is to get a gun. Yes, criminals would be able to find them if gun control existed… but not at Walmart. And the price would also probably go way up…

    Additionally, insulting the author's intelligence simply because you don't like what he has to say is rude, ignorant and just plain mean. What Yale teaches us is the courage to stand up and state our opinions. Diversity of opinion is part of what makes Yale so great.