With my fellow citizens I have struggled with the anger and projected grief that arises in the wake of yet another mass shooting that tears open the raw wounds of our history and our present derangement. As with the other singular atrocities, this event leads us to wider questions about the fragility and peril of our country’s public life. My own peculiar mourning has led me to study the famous Supreme Court case D.C. v. Heller (2008) that stands at the legal core of our resistance to protecting ourselves and our public order from the destruction we see around us. I want to share my reflections with you today.
Not only are our fellow citizens dying in mass shootings. Our Republic itself is under assault. The integrity of the public arenas that constitute the lifeblood of our republican order is imperiled by the threat and fear of violence, while the fog of lies and a flood of political dark money pollute the reasonable debate at the heart of republican self-governance. The failure of governance through informed and reasonable argument creates a vicious circle of violent speech and violent acts. The freedom of self-governance cannot survive under conditions of violence and the threat of violence. Our freedom as citizens rests not in our possession of guns but in our capacity to engage in a public life of reasonable debate about the common good. Throughout history the collapse of the public life underlying republican governance has created the conditions for despotism, tyranny, and dictatorship. Despots arise who campaign on collective fear and govern by personal greed.
The founders of our constitutional order wanted to avert this degeneration into tyranny in earlier republics by distributing authority through a federal order, creating a system of checks and balances within the national government, and adopting provisions protecting the rights of individuals from state action. While they could not have foreseen the combination of widespread gun violence and media distortions that leave us in a state of fear and confusion today, they did know very well the power of demagogues to rise to despotic control over democracies fractured by ignorance and economic misery.
The problem of gun violence in our republic is not only the 33,000 deaths and many thousands of people permanently scarred by gun violence every year. Of equal importance is the fear it casts over every public event, whether it is a concert in Las Vegas, a night club party, a church service, or a town hall meeting.
When people cry out for stricter control of the guns used in these terrorizing actions, some people appeal to “Second Amendment Rights” as a barrier to legislative action. However, the Supreme Court sees no such barrier to wide-spread regulation of guns in its understanding of the Second Amendment. In its 5 to 4 ruling in District of Columbia v. Dick Anthony Heller (2008), the Court simply held that the Second Amendment defended the rights of individuals to possess and keep a loaded handgun in the home for self-defense. It did not even overturn the District’s requirement for the licensing of such weapons. (Read the Majority and Dissenting opinions at http://caselaw.findlaw.com/us-supreme-court/554/570.html.)
As the minority vigorously pointed out, this opinion overturned the long-standing interpretation in US v. Miller (1939) that the Second Amendment pertains to the maintenance of state militias. While the Heller decision opened the door to an endless series of lawsuits to determine which laws may violate this self-defense interpretation, it does not limit states or the federal government from regulating firearms outside the home in the interests of public safety. Indeed, as Justice Scalia said in speaking for the majority in Heller: “…we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation…” in addition, he writes: “…nothing in our opinion should 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.”
In the Heller decision the Court expanded the Second Amendment to include a certain range of weapons used for self-defense, namely handguns. I think it did so wrongly and unwisely, as the minority opinions of Justice Stevens and Breyer strongly argue. However, if the purpose of the Constitution is to preserve a republican form of government based in rational debate among its citizens, the Second Amendment cannot be a political suicide pact in which armed citizens form militias, carry weapons in public, intimidate the general public, or possess arms and munitions that threaten law enforcement officials and drive people from their public assemblies into the privacy of their gated communities and armed homes. Finally, it is not weapons that make communities and republics safe and free, it is the dense web of trust and mutual obligation cultivated in families, churches, voluntary associations, and civic groups that gives us the security and freedom envisioned by our Constitution.
To return to our long journey toward an ever more perfect union, we need to recommit ourselves to the public life of our towns, cities, states, and nation, refusing to be cowed by the domestic terrorism and violence around us. To find effective responses to gun violence we need wide-ranging research into the reasons why our nation has a far greater toll of gun death than any other comparable nation. We then have to insist that our representatives pursue vigorous measures to reduce gun violence. We also need to find ways to talk with each other about our fears and our hopes as well as the practices, customs, and laws that might enable our public life and our constitutional republic to flourish anew.