On Friday, the 14th, the Supreme Court handed down an opinion that may not have made your radar but is worth noting. The Supreme Court struck down a ban on bump stocks enacted by the Trump administration after the 2017 Las Vegas shooting. A bump stock is a device that can be attached to a semiautomatic firearm in place of a conventional gunstock, enabling it to fire bullets more rapidly. It literally exists just to make your gun more deadly – I’m sorry…more efficient.
I thought this was worth talking about because while guns aren’t the most pressing issue of the day, they are certainly never far from anyone’s mind. Americans are never more than a few moments away from the next mass shooting, so I think taking note of a decision that allows us to shoot more people at once is probably wise.
We all know the arguments by heart at this point. Guns are dangerous, save the children, keep guns out of schools, common sense gun laws! Vs. Individual rights, personal safety, American tradition, throw in some good old-fashioned masculinity just for good measure!
But that’s actually where I want to start. With the arguments FOR gun ownership. Because what a lot of people don’t seem to realize is that the current arguments for gun ownership – that you have an individual right to own a gun, as protected by the 2nd Amendment of the Constitution – was pretty much invented whole cloth by the NRA and Antonin Scalia in the early 2000s. That was never part of American jurisprudence or tradition. That was honestly never part of our understanding of gun law or gun culture until 2008. You wouldn’t believe it now, but the NRA used to be IN FAVOR of some gun control.
So, let me take you back in time a bit – to 2008. And Scalia had a field day. Up until that point the gun laws had been relatively settled and relatively reasonable. You just couldn’t have any old gun at any old time for any old reason. But the Heller decision changed everything.
According to Scalia’s Heller opinion:
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.
I cannot tell you what a bid deal that was. That was new. Until the Heller decision it was not established that you had an individual right to possess a firearm unconnected to service in the militia. Mostly because that is absolutely not what the 2nd Amendment says.
Scalia argued that The Amendment’s prefatory clause announces a purpose but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
This is some VERY creative interpretation. Basically, the argument is that since there was no standing army, EVERY male who could carry a gun was a potential militia member, so every male had a right (even a responsibility) to carry a gun. No word on what happens when, you know, we get an army and a police force. Or any comment about women.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
Scalia argues that
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.
- 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.
I’ll make an aside here – today is Friday, a week after the most recent decision – this morning the Court decided to uphold the decision that those with domestic abuse convictions cannot have weapons. So this line of thinking is ongoing.
- The handgun ban and the trigger-lock requirement (as applied to self-defense) at question in Heller then, violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
So, when the Heller decision was announced our understanding of gun rights was changed irrevocably. It’s like the tides turned.
Laura J. Collins wrote a really interesting article in 2014 about the way gun owners (not all, but many) see themselves in a post-Heller world. Guns, she argues, aren’t something you own, but something you ARE.
The politics of “rights as ends” kind of has less to do with making a new future and more to do with the movement itself. What that means is, if the goal at the end of a movement is to achieve this particular “right” than often the movement isn’t about that end goal – it isn’t about the right itself, but it is about the motion of achieving it. The movement itself. The identity of the process.
So, the argument is that those who engage in this kind of politics do so primarily because of the identity work it accomplishes for them. The “rights as ends” kind of politics is more about who you think you are than about the goals you hope to achieve.
The 2A is interesting because it seems the more secure the right is the more vocal those advocating for its preservation become. Since 2008, gun rights have only become more and more secure. We keep becoming more and more, dare I say, reckless in how we handle guns. And yet the pro-gun crowd had never yelled loudly that somebody was coming to take their guns.
Collins’ article looks at public discourse of everyday citizens who believe in an unchecked 2A.
Specifically, responses to Starbucks CEO Howard Schultz’s request that patrons no longer open carry at his store, and responses to Dick Metcalf’s suggestion in a Guns & Ammo opinion piece that there could be such a thing as “non-infringing” gun restrictions.
For most of American history, people, the Courts, and even the NRA took the view that the 2A pertained to militias. This was back when the NRA was a sportsman’s organization and supported a wide variety of gun-control measures. It wasn’t until the late 70s that the NRA began to change positions on gun control – legal scholars and citizens started to adopt the individual rights theory and it would grow over the next 30 years. State constitutions recognized the theory in many places, but the federal government did not. It wasn’t until 2008 in the District of Columbia v. Heller case that the federal government recognized the individual rights theory of firearms.
However, in that decision the Court noted that there should be no doubt that it should be allowable to prohibit ownership of firearms in the case of felons or the mentally ill, or forbidding carrying firearms in places like schools or government buildings, or that there could be laws imposing conditions and qualifications on the sale of firearms.
This was not the end of the discussion, however.
There was all this controversy surrounding Starbucks – people were organizing open carry days; Moms Demand Action for Gun Sense in America were writing petitions – it was a mess.
So, CEO Howard Schulz wrote a letter and posted it online requesting Starbucks patrons not carry guns into his stores. He said it was upsetting for many customers.
Customers responded!
A vocal group of customers clamored that this was discrimination against the 2A, discrimination against 2A rights. But the thing is, you can’t discriminate against a thing. This was full-on personification of the 2A. This, they claimed, was denial of the Constitution, anti-Constitutional actions, throwing the Constitution under the bus, and taking away something that doesn’t belong to Starbucks. There were accusations of bigotry – Schultz wasn’t banning guns; he was banning people. But for that argument to make sense you have to understand its unstated premises: Open carry isn’t a practice; it is a state of being.
They argued if you feel uncomfortable in the presence of a gun you are prejudiced against the person. And the people who feel that way are “random bigots.”
A person can’t come to Starbucks because she “happens to carry a gun” the same way she “happens” to be a woman. So, you don’t choose to be a gun-owner any more than you choose to be a woman. A number of responses drew parallels between carrying a gun and immutable characteristics – asking people not to carry their guns in would be the same as asking black or gay people not to come to the establishment. So, No group is safe. Americans acknowledge racism is bad – why don’t gun carriers have the same protection? Gun carriers are disenfranchised.
The marginalization expressed here is less about the amendment or the rights itself and more about the identity connected with it.
You don’t carry a gun; you ARE a gun carrier. It’s as essential as being black.
This is where advocacy for an unchecked 2A comes from in many ways. Because it’s not about what you do, it’s about who you are.
Metcalf’s letter in Guns & Ammo wasn’t even as proactive as the Starbucks letter. It didn’t call for any action. It just made a suggestion. He said, maybe we should consider common sense gun laws? But the response was so extreme two men lost their jobs.
Readers said it was inflammatory and unconscionable. It was disrespectful and a direct threat to the 2A. Others said it “willfully misrepresented” the 2A and another called it treasonous. Metcalf was a traitor – a “Judas” and a “Benedict Arnold”. Most importantly, Metcalf had shown his TRUE identity.
He had been fooling his readers all along. He did not believe in an unchecked 2A which meant he was a fake. It was not a matter of what he believed; it was a matter of who he was.
This was framed in terms of family – he was a member of the family that had turned on them. People were forced to disown him and the magazine, now. There was no space for him and his ilk. This was a matter of people and identity.
There are two groups of people, according to responders: those who are in opposition to guns and the 2A and those who unconditionally support guns. Readers deny the existence of a third category – those who support guns AND some gun control, because that problematizes identity that is rooted in the 2A. That would suggest that gun owners and/or the 2A supporters do not exist as this unified, marginalized, reviled minority group, and that’s important to identity (see Starbucks).
So, the G&A readers drew strict boundaries – the REAL supporters and the REAL readers and the fake ones.
So, all of this brings us to the Cargill decision of the last week. How on earth do we get to the point where not only can you have a gun, but you can turn a gun into a machine gun because…Constitution?
According to the SCOTUS, The National Firearms Act of 1934 defines a “machine gun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading. With a machine gun, a shooter can fire multiple times, or even continuously, by engaging the trigger only once. This capability distinguishes a machine gun from a semiautomatic firearm. With a semiautomatic firearm, the shooter can fire only one time by engaging the trigger. Using a technique called bump firing, shooters can fire semiautomatic firearms at rates approaching those of some machine guns. A shooter who bumps fires a rifle uses the firearm’s recoil to help rapidly manipulate the trigger. Although bump firing does not require any additional equipment, a “bump stock” is an accessory designed to make the technique easier. A bump stock does not alter the basic mechanics of bump firing, and the trigger still must be released and reengaged to fire each additional shot.
For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) consistently took the position that semiautomatic rifles equipped with bump stocks were not machine guns. ATF abruptly changed course when a gunman using semiautomatic rifles equipped with bump stocks fired hundreds of rounds into a crowd in Las Vegas, Nevada, killing 58 people and wounding over 500 more. ATF subsequently proposed a rule that would repudiate its previous guidance and amend its regulations to “clarify” that bump stocks are machine guns.
- A semiautomatic rifle equipped with a bump stock is not a “ma-chine gun”, Thomas argues, because: (1) it cannot fire more than one shot “by a single function of the trigger” and (2) even if it could, would not do so “automatically.” ATF therefore exceeded its statutory authority by issuing a Rule that classifies bump stocks as machine guns.
A semiautomatic rifle equipped with a bump stock does not fire more than one shot “by a single function of the trigger.” The phrase “function of the trigger” refers to the mode of action by which the trigger activates the firing mechanism. No one disputes that a semiautomatic rifle without a bump stock is not a machine gun because a shooter must release and reset the trigger between every shot. And any subsequent shot fired after the trigger has been released and reset is the result of a separate and distinct “function of the trigger.” Nothing changes when a semiautomatic rifle is equipped with a bump stock.
Between every shot, the shooter must release pressure from the trigger and allow it to reset before reengaging the trigger for another shot. A bump stock merely reduces the amount of time that elapses between separate “functions” of the trigger.
So, ultimately the argument is that because a bump stock doesn’t change the nature of a gun, just the speed of it, and its efficiency at killing, then it is Constitutional. And because, since 2008, we have operated under the auspices that people have a right to a gun regardless of whether they are involved in protecting the nation, then that means they have the option of making their individual weapon as efficient as possible – for whatever reason that may be.
Considering this in the light of Collins’ article, then making the gun more efficient a killer is really just an extension of the person – by adding the bump stock you aren’t just streamlining the process of killing with the gun, you are streamlining the process of killing as a person. And since 2008 you have a right to do that.
Maybe all of this didn’t come together in the minds of the people who were doing it, but when you take a step back, it all plays out pretty clearly. And the thing about studying something like communication, is you don’t necessarily focus on ONE person saying ONE thing – you look at what a lot of people are saying about something – and then a pretty clear picture emerges about the issue. And on this issue, it’s a very ugly picture: the argument boils down to “I have a Constitutional right to be a more efficient killer.” And you can dress it up however you want – that’s what it comes down to.
And it’s really hard for me to reconcile that with a nation that is founded on the premise that I have the inalienable rights of life, liberty, and the pursuit of happiness. If one of my undoubtable rights is life, then it’s a hard sell for somebody to argue that they have an equally inalienable right to kill me as efficiently as possible. But here we are.
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