Calmes: Buffalo, Laguna Woods, and the Supreme Court’s radical review of US history

Talk about a sad coincidence.

I spent the afternoon on Saturday with a book on the history of the 2nd Amendment, then I turned on the news: while I was reading, millions of Americans were shopping; in Buffalo, NY, 10 of them, all black, were massacred, presumably by an 18-year-old white supremacist with an assault rifle.

Yet it was not really a coincidence that my search for this column suddenly made headlines, given the regularity of gun violence in this country. Mass shootings last weekend eight affiliated cities Included Bosco di Lagunawounding 65 people and killing 17, including 10 innocent people in Buffalo.

little more half of Americans uphold stricter gun laws, a share that has fallen from recent years as pro-gun views of Republicans and Republican-leaning independents have tightened. There is more and bipartisan support for certain checks, such as universal background checks and blocking sales to people with mental illness. Yet the arms lobby and the Senate filibuster have blocked even those ideas that have lasted for years. And the number of dead goes up.

columnist

Jackie Calmes

Jackie Calmes takes a critical look at the national political scene. He has decades of experience covering the White House and Congress.

Despite common sense, this epidemic of American gun violence, which includes more and more domestic extremists and others poisoned by hate online, is occurring even as federal courts and many legislative bodies have become more hostile to restrictions on firearms.

The Supreme Court appears poised to expand gun rights in a case involving a New York State law which restricts carrying a gun outside the home. And it could do so in a way that would challenge countless statutes restricting the possession of guns in other states and cities, as well as decisions by lower courts that have upheld those laws.

That result would be another sign of judicial activism, even radicalization, of a court in which six mostly conservative extremist judges now constitute a supermajority. The decision is expected before the court’s term ends next month, along with other potentially important rulings on abortion rights and federal regulations.

The Supreme Court probably wouldn’t even consider the New York case if it weren’t for that conservative majority, created because President Trump got to choose three judges for one term instead of the one he was entitled to appoint. We have to blame Republican Senate leader Mitch McConnell’s dirty politics for this. Likewise, Trump’s appointees populate many of the federal appellate courts just below the Supreme Court.

It was two of those Trump judges on a three-judge panel of the 9th Circuit Court of Appeals who, just days before the young suspect’s alleged racist rampage in Buffalo, struck down California’s ban on the sale of semi-automatic shotguns to adults under the age of 21. Another sad coincidence.

A 9th Circuit opinion passage on May 11 celebrating young gun owners was outrageous, doubly when reread as Buffalo wept and how Americans remembered past victims of underage shooters with easy access to military-style guns – a Oxford High School in Michigan last year, in Parkland, Sandy Hook, Columbine. Current or previous students commit half of the school shootings.

“America would not exist without the heroism of the young adults who fought and died in our revolutionary army,” Judge Ryan D. Nelson rhapsodically wrote. “Today we reaffirm that our Constitution still protects the right that allowed their sacrifice: the right of young adults to hold and bear arms”.

Nelson’s easy piece of revolutionary-era history was in harmony with the misleading and selected narrative behind the Supreme Court landmark Brighter ruling in 2008 with a Conservative majority of 5-4. For the first time in more than 200 years, and contrary to four previous decisions during that time, the judges said the 2nd Amendment established a constitutional right for individuals “to hold and bear arms”.

Respecting the rule of law, I accept this decision. But I vehemently disagree. I’m in good conservative company, believing the founders intended the 2nd Amendment to protect not the rights of individuals, but the rights of states to arm their own militias, without interference from the federal government.

Decades before Heller, among the early efforts of the National Rifle Assn. and his allies to popularize this revised story on individual rights, former Chief Justice Warren E. Burger, a Nixon appointee, said in a 1991 PBS interview that the 2nd Amendment “has been the subject of one of the greatest frauds, I repeat the word ‘fraud’ on the American public”. After Heller, among the harshest critics were the leading right-wing jurists, including appellate judges JHarvie Wilkinson IIIRichard Posner, Frank Easterbrook and J. Michael Luttig.

the reserve I just read, “The Second Amendment: A Biography,” by Michael Waldman, president of the Brennan Center for Justice at New York University School of Law, is full of historical evidence, from the founders’ debates to the two centuries that followed. “I didn’t know I was going to find evidence at that level,” Waldman told me. “When I tell the public, they can’t believe it.”

For example, the Constitutional Convention notes “do not have a single word,” writes Waldman, on the individual right to a weapon, except for membership in state militias.

Now, 230 years later, we are again talking about militia gun rights. Except these modern militias are not from the government but against the government. Not surprisingly, unfortunately. And certainly not what the founders had in mind.

@jackiekcalmes

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