The looming Supreme Court decision in District of Columbia v. Heller
, a case challenging DC's 30-year-old handgun ban, seems to be completely off the radar. Although there was a dramatic surge of attention when the Supreme Court heard oral arguments
in March, very few articles, editorials, and news stories are being written about the long term viability of gun control in light of the Court's expected ruling. Absent from the Court's oral arguments was also a full vetting of the political and social context when the Second Amendment was written -- including the racist origins and purpose of the Second Amendment (see below).
It's as if the country is asleep at the wheel while a potential attack on America's freedom and ability to prevent and reduce gun violence is happening right before our very eyes. The Supreme Court holds in its hands the awesome responsibility of allowing and empowering the American people the "right" and the ability to reduce gun violence, protect our communities and national security. Lives are at stake. This is no hypothetical or dry legal theory we're debating.
To be sure, no one knows exactly how the Court will rule in the DC handgun ban case. But gun violence prevention advocates fear that the Court's conservative members could enshrine a new interpretation of the Second Amendment that "individuals" have a "right to keep and bear arms" -- a complete departure from the Court's own longstanding precedent and the robust history of gun control since the founding of our country.
Even if the Supreme Court ruling aligns itself more closely with the gun lobby interpretation, gun control laws will not immediately evaporate. But the impact of such a ruling would give ammunition to the gun lobby to challenge virtually any and all gun laws on the books on the federal, state and local level and consume enormous resources defending and litigating gun violence prevention measures.
The effect could be devastating, and yet there is very little discussion or debate about the potential of this shell-shocking case to American law and culture. Several legal analysts think that the Supreme Court will issue it's ruling sometime in mid-June of this year in a matter of weeks.
Perhaps most galling of all is that during the oral arguments to the Supreme Court, the justices seemed to be arguing the Second Amendment in a parallel universe.
In a remarkable essay first published in Mother Jones on March 20th
Stephanie Mencimer writes in "Whitewashing the Second Amendment" about the racist origins of the Second Amendment.
At the very least it would be helpful if the justices decided the DC handgun ban case on an accurate reading of the social and political context, original documents, and an understanding of the history when the Second Amendment was actually written. (Justice Scalia who prides himself on being an ardent "originalist" should take note).
Stephanie Mencimer's remarkable essay is worth quoting at length:
"Racial politics dominated the talk in Washington this week as Barack Obama called on Americans to stop ignoring the country's racist past and move forward. The message, apparently, didn't reach the U.S. Supreme Court, where the justices were busy ignoring race during a hearing on the biggest case of the year. On Tuesday, at the same time Obama gave his big speech, the court heard oral arguments in D.C. v. Heller, a case challenging the District of Columbia's 30-year-old law banning handgun ownership. The case marks the first time the Supreme Court has reviewed the Second Amendment in 70 years, and its interpretation could have far-reaching implications for state gun laws. Heller is mostly about gun ownership, but it is also about race—not that you would know that based on the oral arguments.
First, by way of background: The key issue in Heller is whether the Constitution guarantees an individual, as opposed to a collective, right to bear arms within the context of a well-organized militia. The plaintiff, Dick Anthony Heller, is an armed security guard who, with the help of some rich libertarians, brought the lawsuit against the District, arguing that the city's handgun ban illegally prevented him from keeping his work weapon at home.
Last year, in a 2-to-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed and ruled that the city's gun-control law was an unconstitutional infringement on an individual's right to bear arms. Fearing a flood of new firearms into the city as a result, the District appealed to the Supreme Court.
Dozens of interest groups, from the Pink Pistols to Jews for the Preservation of Firearms Ownership, have filed amicus briefs, offering their take on the Second Amendment. But during oral arguments, Justice Anthony Kennedy and his conservative brethren seemed to fully embrace the gun lobby's favorite romantic myth that the founders, inspired by the image of the musket in the hands of a minuteman, wrote the Second Amendment to give Americans the right to take up arms to fight government tyranny. But what the founders really had in mind, according to some constitutional-law scholars, was the musket in the hands of a slave owner.
That is, these scholars believe the founders enshrined the right to bear arms in the Constitution in part to enforce tyranny, not fight it.
Last week at an American Constitution Society briefing on the Heller case, NAACP Legal Defense Fund president John Payton explained the ugly history behind the gun lobby's favorite amendment. "That the Second Amendment was the last bulwark against the tyranny of the federal government is false," he said.
Instead, the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections. Payton explained that the founders added the Second Amendment in part to reassure southern states, such as Virginia, that the federal government wouldn’t use its new power to disarm state militias as a backdoor way of abolishing slavery. (Riiiiight...)
This is pretty well-documented history, thanks to the work of Roger Williams School of Law professor Carl T. Bogus.In a 1998 law-review article based on a close analysis of James Madison’s original writings, Bogus explained the South’s obsession with militias during the ratification fights over the Constitution. “The militia remained the principal means of protecting the social order and preserving white control over an enormous black population,” Bogus writes. “Anything that might weaken this system presented the gravest of threats.” He goes on to document how anti-Federalists Patrick Henry and George Mason used the fear of slave rebellions as a way of drumming up opposition to the Constitution and how Madison eventually deployed the promise of the Second Amendment to placate Virginians and win their support for ratification.
None of this figured into Tuesday's arguments at the Supreme Court. Instead, a majority of the justices, especially Kennedy, seemed to buy the story that the founders were inordinately concerned with the ability of early settlers to use guns to fend off wild animals and Indians, not rebellious slaves. (Slate’s Dahlia Lithwick counts pivotal swing-voter Kennedy making no fewer than four mentions of a mythical "remote settler," who Kennedy suggested would have needed a gun to "defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies.")
Just as the court largely ignored the racist past of the Second Amendment, its focus on self-defense also glossed over the more obvious racial implications of the decision it was reviewing. The plaintiff, Heller, is a white man who lives in a 60 percent black city whose democratically elected leaders long ago decided that handguns were doing more harm than good to its citizenry. Indeed, while two of the original five plaintiffs in the Heller case are black women, not a whole lot of African Americans in the District appear to be out there clamoring to own more handguns for self-defense.
In an interview, Bogus says that polls consistently show that African Americans support gun control in much higher numbers than white people do, and probably for good reason: They're usually the ones looking at the wrong end of the barrel. As the NAACP points out in its brief on Heller, in D.C. in 2004, there were 137 gun-homicide victims. All but two of them were black. If the Supreme Court invalidates the city’s handgun ban, any ensuing uptick in gun violence is likely to have a disproportionate impact on African Americans, particularly young men. (Well no ****, Sherlock. When the vast majority of violent crime in WA DC is being commited by young African American males, of course this is going to have a large (about .45 cal in diameter) impact on them!)
Of course, it won’t only be young black men who suffer should the court decide that D.C. residents need more handguns."