26
LETHAL WEAPONS
There is nothing intrinsic in firearms to make them a Republican cause. The coupling had to be cultivated. And as with abortion, the party saw a latent electoral bloc, primed for possible co-option. In 2019, the New York Times reported that some 50 million households had one or more guns in their homes.1 This came to four in every ten families and individuals living on their own, for an aggregate of 400 million such weapons. A CBS survey found that 33 percent of owning households had one, 23 percent had two, while the remaining 43 percent had three or more.2 Here’s how one owner described his arsenal for a Pew Research Report: “I own three firearms: a single-shot bolt action Remington 514.22, a Type 38 Japanese infantry rifle, and a Remington 870 12-gauge pump-action shotgun. I’m considering buying a Ruger 10/22, to use along with my old single-shot .22 on the firing range.”3
Clearly, firearms have a singular significance for those who own them. Apart from aficionados of vintage cars, it’s hard to find another possession that looms so large in lives. Nor is it easy to fathom this passion for something built to be so lethal.
For purposes of this chapter, firearms take three basic forms. First are rifles, usually holding one or two shells, which are mainly used for hunting, at firing ranges, and for shooting at impromptu targets. Next are handguns, almost all of which have repeating capacities. They differ from rifles in that they can be concealed in purses or vehicles or carried on a body. Third are military-style weapons, most of which are called semiautomatic. The “semi” qualifier means a trigger must be pulled each time to insert the next cartridge from a magazine. Even so, an experienced finger on a trigger can spew out thirty bullets per minute. Such easily purchased arms have been used to extinguish schoolchildren in Connecticut, clubgoers in Florida, civil servants in California, and worshippers in Pittsburgh and Charleston. The largest massacre, in Las Vegas, was effected by fully automatic weapons, which could not be legally sold but were readily modified at home.
No less an authority than Clarence Thomas, arguably the favorite jurist for many Republicans, took time in a 2015 opinion to report that “roughly five million Americans own AR-style semiautomatic rifles.” This weaponry, he added, is mostly kept “for lawful purposes, including self-defense and target shooting.” (By 2018, the AR total was nearing eight million.) Thomas felt no need to explain how guns built to mow down wartime combatants might be amenable to defending a home, let alone knocking cans off a fence post. Indeed, a few seconds on a trigger could reduce a target to tatters, render an intruder hard to identify, and leave little of Bambi to mount on a wall.
Not surprisingly, owners have reasons at the ready. Since these are instruments created to kill, arguments are more practiced than those for, say, possessing a piano.
• One is to mount resistance against foreign invaders. Were North Korean troops to land at Puget Sound, armed householders could hold them at bay, if not drive them back into the sea. Another is to ward off oppressive officials, notably from federal agencies, who can harass local customs and choices. An example was a Texas religious sect that fired back at agents surrounding their compound. Some groups have military-style encampments, where they hone the arts of armed defiance.
• Next comes hunting. According to the US Fish and Wildlife Service, this pastime has been on a steady decline. In the past, as many as one in three homes had someone with a permit. Now fewer than half that many do. At last count, only 14 million adults held such licenses. Many rural residents keep firearms for dealing with four-legged predators, which is less hunting than corollary to conducting a business.
• A further reason is assembling a collection. Some people are drawn to exotic cookbooks; others have scores of ceramic frogs. But with guns, it can get a bit macabre. Like the hobbyist who floated a six-figure bid for the weapon that took Trayvon Martin’s life. What sets this penchant apart is that the products are made for a singular purpose: to kill or maim living creatures.
• The most frequently given reason for arms at home or on one’s person is protection. The best and most succinct statement I’ve seen is by Joseph Olson, a scholar at the Hamline Law School in Minnesota’s Twin Cities: “It’s immoral for a society to remove from me my ability to protect myself when it cannot protect me.”4
This declaration, albeit brief, warrants a close reading. Its first premise is that we are entitled to the expectation that our society, or at least our public agencies, will shield us from crime in its sundry forms. So if authorities can’t or won’t do this job, citizens should be legally allowed to provide this safety on their own. Professor Olson could tell us that few areas are immune to such incursions. A recent FBI count for one year in Minneapolis and St. Paul recorded 59 murders, 2,998 robberies, and 17,198 burglaries, not to mention others that went unreported or where culprits weren’t caught. In an ideal world, law officers would not only apprehend felons, but foil offenses before they get underway, and be so pervasive a presence that would-be miscreants might think twice before they start out. In a word, total protection calls for prior prevention. (As in seeking to forestall terrorist attacks.) Since this isn’t happening, Professor Olson holds that householders can justifiably arm themselves.
We have no statistics for instances where armed householders have thwarted intruders or otherwise held them at bay. There are such episodes. Indeed, there’s hardly a one that the National Rifle Association doesn’t highlight in its publications. In fact, very few are actual break-ins. More typical is a woman who has scared off a bellicose former boyfriend. Who has not feared being accosted on a deserted street or in an ill-lit parking lot? Some Republicans, if not most, want to be free to respond with weapons of their own.
Among our most fraught locales are rural and exurban areas, where drug dependencies reach epidemic proportions. Residences are frequent targets of addicts prowling for anything of value toward their next dose. A West Virginia educator told me that this was why he kept a gun in his home and occasionally in his car. He was asked if he would pull a trigger if he found someone lurking in his home, given the not-small odds of ending that person’s life. First came some murmuring about whether the invader was armed, which may not be easy to detect. In the end, he said he didn’t know, and hoped the occasion would not arise. Nor is this a theoretical question. Tens of millions of people, most of them Republicans, keep devices designed for killing in their homes. Given that their main purpose is protection, would they openly say they are ready to fire it at a human being? Yet Republicans—person for person—live in the safest sectors of the nation, far removed from forbidding felonies. More to the point is that Republicans—again more than Democrats—see their country as violent terrain. (Long sentences keep potential perpetrators locked up until their vigor has ebbed.) For many years, the focus was on black marauders, seen as bent on racial revenge. More recently, the spotlight has turned to immigrants, viewed as bringing a ferocity nurtured in their native barrios.
That more women now want to own and carry firearms has presented the party with a dividend. That they are accorded coequal welcomes at gun shows and firing ranges bespeaks updated frontier feminism. It’s an elevation of Annie Oakley’s “Anything you can do, I can do better!” Since women generally have been migrating away from the GOP, its pro-gun plank hopes to mitigate that loss.
And race patently intrudes where firearms are concerned. For example, insofar as Republicans fret about crime, compounding the fear is that the offender confronting them might be black. A white malefactor might make off with your money. With black miscreants, there is an added dread. It is that they may take another moment to exact retribution for what your people have done to their own. Keeping personal weapons for protection has some similarity with to why plantation owners always had arms at the ready.
All this noted, the precincts where guns are most commonly used are within inner cities. Tragically, young black men deploy them to slaughter one another. Not to mention when stray bullets maim youngsters walking to school or a neighbor by a window. Yet at no point has the GOP urged that urban authorities deal directly with the weapons that are ending so many lives. Significantly, its platforms have never called on cities to ban private arsenals. After all, if guns may be legally seized in Baltimore, the next step could be confiscations in rural Montana.
In 2017, the most recent figures at this writing, black Americans lost their lives by firearms at almost twelve times the rate for whites.5 Overwhelmingly, they were slain by members of their own race and age group. A view of some Republicans, if not openly stated, is that such murders help to make society safer. Here’s Michael Nutter, a recent Philadelphia mayor, on what isn’t said aloud: “It’s one bad black guy who has shot another bad black guy, so one less person to worry about.”6
In 2017, CBS asked a sample of Americans how they felt about firearms. Partisan lines were pronounced. Close to three-quarters of Republicans—71 percent—viewed possession as a “vital” right, while only 24 percent of Democrats did. Six times as many Republicans said the country would be safer if more citizens had guns, and eight times as many said that the Second Amendment is “part of what makes this country great.” Over half of Republicans told CBS that mass shootings “are something we have to accept as part of a free society.” So it’s not surprising that since 1968, Republican platforms have affirmed the right to “collect, own, and use firearms.”7
In 2008, the Supreme Court’s five Republican members faced a duty call from their party. The District of Columbia had set stringent conditions on the purchase and possession of guns. That local law was contested on the ground that it contravened the Constitution’s Second Amendment.
Many people can recite its twenty-seven words by heart: “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.”
For over a quarter of a century—since Clarence Thomas was named in 1991—Republican justices have understood the parameters of their appointments. The first is to safeguard wealth and profits, as with supporting employers when workers seek recognition or redress. Or allowing corporate largesse to dominate the political arena. But these jurists never forget their compact with their less-affluent adherents. Hence their periodic opinions, which endorse their party’s positions in areas like abortion, firearms, and race.
Human differ from other creatures, in that they feel obliged to fabricate prose to justify their actions. Thus if a clinic is closed, words must be crafted claiming that this promotes a larger good. Hence June 2008 saw five Republican justices responding to their party’s call on private ownership of lethal weapons. But as noted, it won’t do to simply issue a single sentence attesting such possession is permissible. There were twenty-seven crucial words that had to be interpreted. What they intended would decide the status of 400 million firearms.
In District of Columbia v. Heller, the majority construed a succinct constitutional provision as bestowing an inherent right that their branch had never once acknowledged in the more than two centuries following the amendment’s enactment.
Two issues intersect when judges confront governmental actions regarding guns. The first is that those on federal courts were not elected, in contrast to lawmakers at sundry levels. Republican judges have long held that the decisions they hand down should avoid any inkling of legislating from the bench, let alone hints of judicial activism. Some in the GOP still to point to Brown v. Board of Education, which ordered the desegregation of schools, as such overreaching. Today, they decry Roe v. Wade, which legalized abortion, as judicial usurpation.
But no such hesitation was shown in 2008, when five Republican justices gave themselves the power to make possessing firearms a broad federal right. If asked, they would weave webs of words to show how Heller differs decidedly from Roe. At the least, we will be assured that the firearms decision was neither legislative nor activist, but an objective exercise in constitutional interpretation.
So to the second issue. It is how best to interpret, and then apply, the language of a law or the Constitution itself. From time to time, members of the Supreme Court feel called upon to wax philosophical. Hence their insistence that they don’t just assess each case on its discrete merits, but that consistent principles inspire their opinions.
Republicans generally choose one of two precepts. When it suits them, the preferred tenet is to discern the plain meaning of crucial words in a law or provision. Like the unadorned message in “interstate commerce” or “excessive bail.” Here the judge is a consummate logician, expert at parsing abstruse sentences. Unfortunately, this principle can’t work with the Second Amendment. The problem is the first thirteen of its twenty-seven words.
The allusion to “a well regulated militia” was an explicit qualifier to any right to “bear and keep arms.” It might well have allowed firearms only to members of militias, what today we call the National Guard. The muskets in question could be their own, or supplied by the government and stored at home.
A plain-meaning analysis must take in all twenty-seven words, not just the final fourteen. So with the Second Amendment, its militia allusion precludes a plain-meaning reading that would yield a Republican result.
Hence recourse to a different doctrine, one its adherents call “originalism.” Here judges go back to the time when a law was enacted or a constitutional provision was written. Here the focus is on the intent of the original figures who chose the words or contributed to their enactment. With more recent legislation, there can be recourse to several sources, like committee hearings and reports or statements during debates. But with the Constitution, its authors are long dead. Still, we have James Madison’s notes of the drafters’ 1787 deliberations, as well as The Federalist Papers and state ratifying conventions, plus historical records on what life was like in those days. So parsing sentences is not enough. Research may be needed to fathom how the keeping and bearing of firearms was originally construed in 1791, when the Second Amendment was adopted.
It fell to Antonin Scalia to write on his own behalf and for his four fellow Republicans. It ran to sixty-four pages, for a total of 21,410 words. That length was deemed necessary, because it was an excursion into colonial history, endeavoring to re-create how people must have felt about guns. Scalia may have sent his clerks to pore over yellowed documents, as well as citations in briefs that were friendly to his side. A sampling of what was found is below.
What Scalia produced was akin to the term paper of a sedulous student. His opinion was replete with citations, chosen to prompt an inference that owning and carrying of guns was common in the 1700s, often with official sanction. He then seeks to persuade his readers that they must mirror the mind-set of James Madison, the original author of the amendment, and the legislators who added it to the Constitution.
This recourse was necessary because a plain-meaning explication would have had to address the militia preface. Hence the switch to originalist suppositions. Not to mention the premise that nouns and verbs quill-penned in the 1700s of slaveholders and chimney pieces must control how lives are led in the 2000s.
“Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?” A Complete Collection of State-Tryals (1719)
“Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping, Arms, &c.” A Collection of All the Acts of Assembly Now in Force, in the Colony of Virginia (1733)
“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance.” A New Pandect of Roman Civil Law (1734)
“What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece?” Some Considerations on the Game Laws (1796)
The five Republican justices knew what their party expected of them. It was to decide for the plaintiff, Dick Heller, and their partisans, who feel passionately about their guns.
The Republicans are the party that promotes Christian values. (Texas)
We need to cut back on immigration and prevent radical Islam from taking over America. (Tennessee)
I will never vote for any candidate that supports “woman’s right to choose.” That phrase denies what’s being done: slaughtering human beings! (Ohio)
We should put our country first. (Maryland)
If we can rid our economy of consumer and corporate taxes, the United States will flourish. (Idaho)
I’m against political correctness. (Ohio)
Republicans come from many backgrounds, but we are united by our desires for responsible leadership, limited government, and free markets. (Texas)
Government should be small and our military should be strong. (Arizona)