The Second Amendment: How we got here

in Law/Politics

For the first 170 years since it was ratified, fewer words and legal opinions were written about the Second Amendment than nearly any in the Bill of Rights (with the exception of the 3rd). That isn’t to say people didn’t have guns. Of course they did. Guns were bought and sold. States regulated them, but little was made of it prior to the early 60’s.

In the early 60’s, as the Civil Rights movement began to intensify and become more contentious, there was a spate of unarmed black men being shot by police. In response to this, in 1966, Bobby Seale and San Francisco law student Huey Newton founded the Black Panther Party for Self Defense in Oakland California. Seale and Newton organized groups of young black people to arm themselves and shadow the police on their patrols. Newton, in what was at the time an unusual justification, claimed the 2nd amendment gave individuals the right to carry loaded guns in public places. Additionally, California Supreme Court had ruled that individuals may observe police stops “from a reasonable distance” judged to be about 10 feet. This justification for “Copwatching” led to showdowns with Oakland police officers and ultimately resulted in the crafting of the Mulford Act, named for Republican Assemblyman, Don Mulford. This act prohibited the carrying of loaded firearms in public places.

As the act was being debated, a group of about thirty Black Panthers, fully armed, marched into the state legislature to protest what they saw as the infringement of their 2nd amendment rights. Nearly three dozen heavily armed men and women stood on the floor of the California legislature shouting at the capitol police as the lawmakers hid under their desks.

The act passed.

As the governor, a Republican named Ronald Reagan, signed it, he commented to reporters that he saw “no reason why on the street today a citizen should be carrying loaded weapons” and that guns were a “ridiculous way to solve problems that have to be solved among people of good will.”

This was the beginning of a flood of regulation, both on the state and federal levels, including the Gun Control Act of 1968 amidst ever more violent unrest in the form race riots and Vietnam protests.

Consternation followed, particularly among rural white voters followed, who figured they could be next to lose their gun rights. This led to a confrontation redefining the role of the NRA, which at the time was more of a sportsman’s club than a lobbying group. In 1977, a man named Neal Knox organized a group of NRA members to issue a list of demand to the non-profit’s board and leadership. By the end of the evening the leadership had been completely replaced and the NRA took the offensive, battling gun control policies and influencing legislation. In 1980, a politically charged NRA endorsed their first presidential candidate, the very same Ronald Reagan who, 13 years earlier, had touched off the debate with his signing of the Mulford act, who, apparently had changed his stance on the issue when those fighting for gun rights weren’t Black Panthers.

In the years since then, the debate has continued to intensify. By 1991 Americans were more familiar with the 2nd Amendment than the 1st.  That’s the one that guarantees the freedom speech, a free press, freedom of religion, freedom of assembly, and the freedom to petition the government for a redress of grievances…

In 2002, Robert Levy of the Cato Institute, a libertarian leaning think tank, started putting together a case to challenge Washington, DC’s gun laws, the most restrictive in the country. The lead plaintiff was a security guard named Dick Heller, who carried a gun for work, but was unable to keep a weapon in his home. In 2007 the Supreme Court agreed to hear the case, which resulted in the famous 5 to 4 decision that, ”The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

The decision further states “…Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

Thus individuals do have the right to “keep and bear arms,” however the government has the right to place restrictions on this right, leading us to where we are today.

Who should be banned from owning and bearing arms? What criteria should we use? Attempts to study the gun violence issue have been stymied of late, most notably by the Dickey amendment in 1996, named for Jay Dickey, a Republican from Arkansas, who introduced the amendment at the urging on the NRA. This amendment states, “none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention (CDC) may be used to advocate or promote gun control.”

This came with a $2.6 million cut in the CDC budget, the precise amount earmarked for studies of gun violence, effectively ending agency research into gun violence.

The spending bill passed last month, signed by President Trump on March 23rd, while it does not rescind the Dickey Amendment, clarifies the CDC can, in fact, study gun violence. Let’s hope this research comes with actionable policy recommendations and a congress willing to let data – not ideology nor lobbyists – inform policy decisions.