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In 2008, Kamala Harris signed on to a District Attorneys' friend-of-the-court brief in D.C. v. Heller, the Supreme Court's leading Second Amendment case. Of course, she may have changed her views on the Second Amendment since then (perhaps in light of precedents such as Heller); and she may have different personal views than the ones she expressed as a D.A. (though note that she signed on to the brief as a signatory, and not just as a lawyer for the signatories). But this brief likely tells us something about her views on the Second Amendment.

[1.] To begin with, the brief urged the Court to reverse the decision below, and thus to reinstate D.C.'s handgun ban. Thus, Harris's view in that case was that the Second Amendment doesn't preclude total bans on handgun possession.

[2.] The brief also came at a time when the great majority of federal courts (including the Ninth Circuit, which covered Harris's jurisdiction, San Francisco) viewed the Second Amendment as not securing any meaningful individual right of members of the public to personally keep and bear arms. Rather, those courts viewed the Second Amendment as endorsing (to quote the then-existing Ninth Circuit precedent, which the brief itself later cited),

the "collective rights" model, [which] asserts that the Second Amendment right to "bear arms" guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons.

Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like.

And the brief supported that majority view among federal courts: Affirming the D.C. Circuit decision, which rejected the collective rights model and recognized an individual right to own guns,

could inadvertently call into question the well settled Second Amendment principles under which countless state and local criminal firearms laws have been upheld by courts nationwide.

Thus, Harris's view in that case was thus that the "collective rights" view of the Second Amendment was correct, since that was the "settled Second Amendment principle[]" in lower federal courts at the time.

[3.] Now the brief also said that "The District Attorneys do not focus on the reasons for the reversal [that it was urging], however, leaving these arguments to Petitioners and other amici." Nonetheless, it argued that,

For nearly seventy years, courts have consistently sustained criminal firearms laws against Second Amendment challenges by holding that, [among other things], (i) the Second Amendment provides only a militia-related right to bear arms, (ii) the Second Amendment does not apply to legislation passed by state or local governments, and (iii) the restrictions bear a reasonable relationship to protecting public safety and thus do not violate a personal constitutional right. The lower court's decision, however, creates a broad private right to possess any firearm that is a "lineal descendant" of a founding era weapon and that is in "common use" with a "military application" today.

The federal and state courts have upheld state and local firearms laws, as well as criminal convictions thereunder, against Second Amendment challenges on three primary grounds. In holding the D.C. laws at issue to be unconstitutional, the decision below undermines each of these grounds, which also could be cast into doubt by an affirmance in this case.

First, courts nationwide have upheld criminal gun laws on the basis that the Second Amendment provides only a militia-related right to bear arms. See, e.g., Scott v. Goethals, No. 3-04-CV-0855, 2004 WL 1857156, at *2 (N.D. Tex. Aug. 18, 2004) (affirming conviction under Texas Penal Code 46.02 for unlawfully carrying a handgun because Second Amendment does not provide a private right to keep and bear arms); Silveira v. Lockyer, 312 F.3d 1052,1087 (9th Cir. 2003) (holding that California residents challenging constitutionality of California's Assault Weapons Control Act lacked standing because Second Amendment provides militia-related right to keep and bear arms); State v. Brecunier, 564 N.W.2d 365, 370 (Iowa 1997) (upholding firearm sentence enhancement because defendant "had no constitutional right to be armed while interfering with lawful police activity").

The lower court's sweeping reasoning undermines each of the principal reasons invoked by those courts that have upheld criminal firearms laws under the Second Amendment time and again. First, under the lower court's analysis, the Constitution protects a broad "individual" constitutional right, one that is not militia-related, to possess firearms.

This certainly seems to me like approval of the principle listed as (i) in the brief, which is the view that "the Second Amendment provides only a militia-related right to bear arms."

Now perhaps this passage could be read as simply describing what courts were doing, or as suggesting that the Supreme Court could either adopt principle (i) or perhaps some of the other principles instead. But it certainly sounds to me like an endorsement of the "only a militia-related right to bear arms" view, especially since that's the lower federal courts' "well settled Second Amendment principle[]" to which the brief had earlier alluded (see item 2 above).

Plus principle (ii) is an endorsement of the view (rejected by the Court two years later in McDonald v. City of Chicago) that states and localities can institute whatever gun bans they want (even total gun bans) without violating the Second Amendment. And even if we focus on principle (iii), under which gun laws are constitutional if they "bear a reasonable relationship to protecting public safety," the brief was supporting a total handgun banif that is permissible on the theory that it "bear[s] a reasonable relationship to protecting public safety," then I would think a total ban on all guns would be, too.

The brief closed with a suggestion that "the Court exercise judicial restraint and explicitly limit its decision to the three discrete provisions of the D.C. Code on which it granted certiorari" (the handgun ban, a licensing requirement, and the requirement that guns be stored disassembled or bound with a trigger lock), because "This would avoid needless confusion and uncertainty about the continued viability and stare decisiseffect of this Court'sand other courts'prior Second Amendment jurisprudence."

This passage doesn't expressly urge the Court to adopt a particular line of reasoning. But, again, the first principle that the brief mentioned, and the one most clearly consistent with lower federal courts' "prior Second Amendment jurisprudence," was that the Second Amendment didn't secure an individual right that ordinary citizens could exercise in their daily lives. It sounds like that is at least one approach that the brief is endorsing.

So, to summarize:

An article by Cam Edwards (Bearing Arms) on Aug. 11 made a similar argument in concluding that"Kamala Harris Doesn't Think You Have the Right To Own a Gun" (to quote its original title), but an Agence-France Press "Fact Check" on Aug. 18labeled that claim "false." I find the "Fact Check" quite unpersuasive, at least as to the specific question of Harris's views on the right to own a gun.

AFP writes, "Rather than outright opposition to gun ownership, Harris has supportedlegislation aimed at increasing safety." It may well be that Harris wouldn't promote a statute banning guns outright. But her brief states that she thinks governments have the constitutional power to ban at least all handguns, and likely guns more generally.

AFP writes, "Nor has she called for the destruction of the Second Amendment, whichsays: '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.'" But she has endorsed, as I read it, the view that the Second Amendment doesn't protect a normal individual right to own guns, rather protecting only a "collective right" under which states can limit gun ownership to members of a state-designated "militia."

AFP goes on to say, "Legal scholars, however, say that although Harris supported the amicus brief, it is false to conclude from it that she believesas the article claims'you don't have the right to own a gun'":

"The brief in question is not about whether there is an individual right under the Second Amendment. It is about the crime-related consequences of invalidating the DC handgun law at issue in Heller," Aziz Huq, of the University of Chicago Law School, told AFP by email. Huq studies how constitutional design interacts with individual rights and liberties.

Adam Winkler, a specialist in gun policy at the UCLA School of Law, made a similar argument.

"This statement is false," he said of the article's claim.

"The brief she supported argued that DC's gun laws should be upheld but not because there was no right to own a gun," Winkler said in an email to AFP.

"Rather, the brief argued that the laws should be upheld because there is a tradition of gun restrictions, and DC's were reasonable regulations," said Winkler, the author of "Gunfight: The Battle Over the Right to Bear Arms in America."

Again, for the reasons I gave above, I think Profs. Huq and Winkler are mistaken. The brief does seem to endorse the collective rights view of the Second Amendment, under which there really is no right to own a gun. And, again, at the very least the brief endorses the view that all handguns could be banned, consistently with the Second Amendment.

Finally, the brief turns to another scholar:

The amicus brief which Harris joined argued "that at least as far as the Second Amendment is concerned, it doesn't relate to private rights," said [Jake] Charles, of the Duke Center for Firearms Law.

But he added: "I'm not sure it's fair to claim that as her current position given that the Supreme Court decided in Heller that people do have that right, and I haven't seen her questioning the Heller decision."

Here, I agree that (1) the amicus brief does take the view that the Second Amendment doesn't protect any "private rights," and (2) we can't be certain that this remains her view today. But it is at least plausible that her views about the subject haven't changed, and that if she could participate in reshaping the Supreme Court, she would reshape it in favor of reversing the Heller decision, and moving the law back to a view under which "the Second Amendment doesn't relate to private rights."

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Kamala Harris on the Second Amendment Reason.com - Reason

Dont let the politicians or the NRA scare you about taking your guns away. The Second Amendment to the Constitution would have to be repealed. Heres how the process works:

A proposed amendment to the Constitution must first be passed by Congress with two-thirds majorities in both the House and the Senate.

Then three-fourths of the states must ratify the amendment. Thats done either through getting the state legislatures to approve of it or by ratifying conventions. Three-fourths is a high bar if as few as 13 states refuse to approve the change, the amendment stalls. Considering how many states are considered gun-friendly, its unlikely that the amendment would survive.

The other option for repealing the Second Amendment is more radical: Calling for a constitutional convention under Article V of the Constitution (AKA an Article V convention). If two-thirds of the state legislatures call for a new convention, they could convene delegations and start drafting new amendments. Its understandably a controversial idea, but arguably could be a way to repeal the Second Amendment.

LARRY L. DUBEY,

Alpena

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Repealing the Second Amendment is not easy | News, Sports, Jobs - Alpena News

On March 21, 2018, newly elected U.S. Senator Doug Jones gave his first-floor speech. The topic of his speech most certainly was one that is rarely heard from members of the Alabama delegation in either chamber his support of gun control and restrictions on the nations Second Amendment rights.

According to an NPR story, Jones said he was supportive of efforts that were discussed and later implemented after the Marjory Stoneman Douglas shooting, including, moving to ban bump stocks that can convert guns into automatic-style weapons, efforts to strengthen the background check system. He went on to say those restrictions werent enough. Jones proposed making background checks universal, including on internet sales, at gun shows and even private sales, as well as implementing three-day waiting periods.

Jones has since tried to reframe his speech and its purpose. AYellow Hammer news story cross-referenced his senate speech with an interview with Al.Com. In his speech, Jones said, So while I know that guns and gun control are difficult issues for this country, I can tell you theyre complicated for me, too. In his interview with Al.com, he backtracked, saying, I didnt make a speech about gun control. I made a speech about gun safety.

Doug Jones attracted the attention of NRA-ILA and its members when the national organization called upon him to confirm Judge Brett Kavanaugh to the U.S. Supreme Court. Jones voted against Kavanaughs confirmation.

A recent Ammolandeditorialby Harold Hutchinson laid out additional arguments for electing Republican Tommy Tuberville over Jones. Electing Tuberville would help give Republicans an advantage in the Senate. He goes on to explain,Jones did sign on to a version of the For The People Act, which for all intents and purposes he says is intended tosilence grassroots opposition to left-wing politicians and causes, like gun control.

Hutchinson also noted in his piece that Along with control of the Senate, the need for a Republican advantage lies in the ability to fill judicial vacancies. The next elected president will possibly fill the vacancies of judges like Ruth Bader Ginsburg, Stephen Breyer, orClarence Thomas. Donald Trump will certainly continue to nominate pro-Second Amendment judges, and if the Senate majority narrows, the nomination and confirmation of these judges could be stopped.

In contrast, Tuberville has openly stated his support for the Second Amendment. On his campaign website, Tuberville states, While we are fighting out-of-touch liberals to protect life and liberty, we must also stand up for the time-honored traditions we hold dear in Alabama. Being a sportsman has always been a part of my life. That is why I will always vote to protect and preserve our Second Amendment rights.

In an interview with the Daily Mountain Eagle, Tuberville said, A mental health plan is needed to address the mass shootings in the nation. He added it once had one. Now he says the plan is to release prisoners to the streets.

There is not a gun problem. It is a people problem, he said. Theres been guns here forever. Im not for any form or fashion of gun control. Theyre are not taking my guns, because what happens is they are not looking to take guns because you want to hunt and do some casual shooting or target practice. They want to take your guns away so they can control you. In this country, we cannot do that. The Second Amendment says we are allowed to bear arms.

The National Association for Gun Rights (NAGR) endorsed Tuberville over Jones. Dudley Brown, a NAGR-PAC chairman, made a statement to Yellowhammer News.Tommy Tuberville scored a perfect 100% on the NAGR survey and has pledged to support the Second Amendment and fight back against illegal gun grabs as a member of the U.S. Senate.

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Second amendment rights on the line with Doug Jones US Senate reelection bid - Alabama Today

This is the second in a two-part series on the origin of the United States Constitutions 2nd Amendment. For the first part, click here.

Every mass shooting in the United States sparks a conflagration of debates over gun rights and the Second Amendment. Each time, Second Amendment fundamentalists crusade against anti-gun violence activists, marching against regulations that they perceive as unjust limitations on their constitutional right to bear arms. Yet if Second Amendment fundamentalists understood that slavery and the white supremacy used to justify it were the root impulses behind their aversion to regulation, perhaps they would be compelled to recognize their flawed legal logic.

The institution of slavery likely determined the language of the amendment, passed in 1791. At that time, state militias were the primary agent of slave suppression. Because the original Constitution undermined states control of their militias, it potentially jeopardized the slave system. With the introduction of the Bill of Rights, the Second Amendment balanced state and federal control of state militias, securing slavery. However, far from ceasing to influence gun rights legislation, slaverys legacy has distorted modern interpretations of the amendment: the historical context produced the wording itself, but the imprints that slavery left on the American cultural fabric gave rise to modern fundamentalist interpretations.

One of the most important of these interpretations was canonized by the Supreme Court in its 2008 decision in District of Columbia v. Heller. In Justice Scalias majority opinion, he reasoned that the Second Amendment could be divided into one non-operative clause followed by three operative clauses. In short, he said that the first clause relating to a well regulated militia should have no bearing on the scope of the right to bear arms, ignoring the historical context.

Dismissing the significance of the militia clause opened the door for broader legal interpretations. Scalias opinion was also the first to give official credence to the notion that the amendment was included as a ward against tyranny. This has impeded regulation efforts, because it has become an asset to conservative legal arguments, allowing conservatives to disdain as a heretic anyone who suggests repealing the amendment.

It seems Scalia, an avowed originalist, decided to throw reverence for the Founders original intent, along with basic grammar rules, into the dustbin of irrelevance. By modern grammatical logic, the first clause would be an absolute clause, modifying the whole sentence. Of course, in 1788, commas were not always used to enforce grammatical rules but rather to indicate pauses for speaking. Still, even without the commas, the logic is the same: the Founders were educated in the classical tradition, and they would have recognized the first clause as an absolute ablative rhetorical device a grammatical structure in which the first few words dictate the meaning of the whole sentence. An honest consideration of grammar, then and now, renders Scalias conclusion bogus.

Even more damning is the fact that Thomas Jefferson, the author of the Declaration of Independence, was appalled by the misleading punctuation in the Second Amendment, and tried to rewrite it with one comma:

But Jefferson was too late: drafts of the Bill of Rights had already been sent to all of the state conventions, and sending a revision could have led to disastrous political drama. So the flawed version was adopted, obfuscating its meaning, and allowing lawmakers to make the seemingly reasonable argument that the clauses are independently significant.

Where does slavery come in? Scalias specious grammatical assumptions were born of political bias: the conservative fetishism for guns and unabridged Second Amendment rights formed the ideological wind that precipitated Scalias decision and those of other conservative judges.

That wind originally hails from the Antebellum South. Violence against slaves was the buttress of the slave system. Not only was this economically necessary, it was psychologically imperative to sustain the system. Moreover, the ever present threat of slave insurrection left slave owners in a perpetual state of insecurity, compelling them to resort to violence for the slightest infractions. Through violence, slave owners realized their white supremacist assumptions and justified the slave system, fortifying cultural biases that persist today, passed along through generations of prejudice and stifled progress.

Violence upheld the Southern system, not just the slave system. Indeed, the pseudo-feudalistic honour code that bound Southern aristocrats kindled a fetishization of weaponry, along with a permissive view of white slave owners right to bear arms in public.

One way in which this culture manifested was in duelling: white Southerners resorted to duelling to resolve controversy far more often than their Northern contemporaries; in fact, the practice had beenbanned in many Northern states. This enthusiastic embrace of violence also infested Southern legal culture. Modern open carry laws find their precedent in Antebellum Southern court rulings, which held that possessing a concealed weapon was dishonorable [sic] and led to unmanly assassinations.

These were the seeds of modern American gun culture. Of course, Northerners also bore arms to hunt and for other purposes, but the plantation system birthed a unique romanticization of violence in the South. Naturally, the western frontier spirit also romanticized gun culture; however, the rapid settlement of the west was stimulated by the expansion of slavery, as plantation agriculture quickly depleted soil, and slave owners required more territory to establish plantations. Moreover, the slave state coalition recognized that they could only maintain their political monopoly in Congress by establishing more slave states, leading them to encourage western settlement.

No wonder, then, that many pre-Civil War crises were a result of slave owners resisting efforts to abolish slavery in western territories. After the Civil War and the failure of Reconstruction during the 1880s, many black codes and Jim Crow laws prevented African Americans from invoking their Second Amendment rights. Meanwhile, white people, with their constitutional right to bear arms, enthusiastically joined the ranks of the Ku Klux Klan and reigned terror on Black communities.

As often in American history, hypocrisy and racism muddy the waters. During the 1960s, the Black Panthers movement would invoke the Second Amendment and open carry laws to defend their right to carry weapons to protect themselves against racists. In response, many states overturned open-carry laws and referred back to the militia clause supported by the NRA and other organizations that are today at the helm of the open carry movement. If their reversal wasnt hypocritical, perhaps it was out of respect for the Founders original intent: the amendment was originally a product of white supremacy, and it had always existed as a tool of oppression.

In time, the Black Panthers dissolved, and conservatives readopted the Second Amendment as a monument to libertarianism. Instead of an agent of the states right to oppress Black people, it became every Americans inalienable, nearly unlimited right to resist the overtures of big government. But the racist underpinnings did not disappear. Rather, they morphed into the spectre of big government, born from a reactionary backlash against government programs and social safety nets that were a direct result of the 1960s Civil Rights movements and which were predominantly intended to uplift marginalized communities.

This phantom likely influenced Scalias decision in 2008. His disregard for grammar and historical context was not a mischaracterization of the Second Amendment, it was a reaffirmation of its original purpose: to oppress Black Americans. The big government tyranny he referred to is a euphemism for a government that protects the rights of minorities. Likewise, the idea that every American has an inalienable, unlimited right to bear arms originates in part from a cultural allergy to armed Black people, developed in the Antebellum South and left untreated throughout American history. Even the superficiality of Americans affection for firearms can trace its origins to the Southern slave system and the culture of violence that kept it in place. The NRA, and other gun lobbyists who promote an unrestricted interpretation of the Second Amendment are not only impeding recognition of the amendments racist history: they are perpetuating racial injustice.

Scalia, and other conservative lawmakers who have gone even further than he did to advance an unlimited interpretation of the amendment, are either blind to the racism that influences their ideology, or content with venerating an artifact of slavery. From its racist political origins at the nations founding to racist legal interpretations throughout the 20th century, it remains to this day a haunting reminder of Americas dark past. Although the principle of gun rights may not be racist in itself, those who swear by the Second Amendment and denounce gun reform efforts must recognize that they are effectively defending its racist history. It is difficult to arrive at any other explanation: the laws of grammar and historical context render fundamentalist interpretations indefensible. Presented with these facts, lauding it as a token of American virtue must stem from willful ignorance or racist malfeasance.

Recent months have turned inches into yards as Americans have rushed to the streets, crying out for America to reckon with its racist original sin. Amid these convulsions, monuments have been toppled and false historical narratives have been dismantled. For too long, Second Amendment fundamentalists have succeeded in coating the amendment with a thick sheen of revolutionary tradition. Yet it is like any other monument, and it will prove as hollow as the empty sockets of bygone Confederate statues a reminder of the US misbegotten history and a landmark on the road to its overdue reckoning.

Featured Image:Holster Gun Flag by Alien Gear Holsters is licensed under CC-BY 2.0.

Edited by Chris Ciafro

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Opinion | Slavery Distorts Conservative Interpretations of the Second Amendment - The McGill International Review

by Charles C.W. Cooke - Saturday, August 29, 2020

Defenders of the right to keep and bear arms might be forgiven for wondering whether the U.S. Supreme Courts copy of the United States Constitution is missing a few pages.

It has been twelve years since the Court affirmed in D.C. v. Heller that the right of the people to keep and bear arms actually means the right of the people to keep and bear arms, and ten years since the court affirmed in McDonald v. Chicago that the Second Amendment applies to the states as well as to the federal governmentand yet, as valuable as those decisions are, the last decade has made it clear that the U.S. Supreme Court is not especially interested in ensuring that they are enforced. In June, the justices continued this unfortunate trend by denying certiorari on no fewer than ten Second Amendment cases. For now, then, the right will remain a mere abstraction to the nations network of courts.

This matters, as it is difficult to think of another right that has been so willfully ignored and abused by our lower-court judges. In case after case, panels at the state and circuit levels have elected either to pretend that Heller and McDonald never happened at all, or, alternatively, to parse their language so carefully as to render those cases meaningless. Despite this insubordinationand it is just that: insubordinationthe Court has done nothing.

This abdication of responsibility has not sat well with all of the justices. Teaming up first with Justices Scalia and Alito, and then with Justices Gorsuch and Kavanaugh, Justice Clarence Thomas has taken to dissenting when the Court declines to take an important gun case. The Second Amendment, Thomas has complained, is a disfavored right in this Court, and its steadfast refusal to consider gun-related appeals stands in marked contrast to the Courts willingness to summarily reverse courts that disregard our other constitutional decisions. Ultimately, Thomas has concluded, the Courts unwillingness to step in has had the effect of relegating the Second Amendment to a second-class right.

In and of itself, the Courts refusal to do its job is a big problem: A right delayed, we are told, is a right denied. But, as time rolls on, it is hard not to agree with Justice Thomas when he suggests that the continued refusal to hear Second Amendment cases only enables this kind of defiance. In law, as elsewhere, human beings respond to incentives, and at present, the incentives all line up in the wrong direction. Why did the Fourth and Seventh Circuits ignore the plain language of Heller in upholding bans on the most commonly owned rifles in America? Why has the Ninth Circuit allowed California to turn the right to carry into a privilege for the well-connected? Why do New Jerseys flagrantly illegal gun laws still exist? Because the judges who heard those cases knew that the chance of their work being reviewed and overturned by the Supreme Court was vanishingly small, and they acted accordingly.

For those of us who believe that the U.S. Constitution should be read and upheld as it is written, it has proven extremely frustrating that the U.S. Supreme Court seems willing to involve itself in all sorts of areas that are not mentioned anywhere in the document, but seems unwilling to protect a right that is explicitly mentioned in the text. That most of Americas progress in restoring the Second Amendment has come from the people themselves is a blessing indeed; the story of the last three decades has been the story of legislatures, at the behest of voters, changing their laws to minimize restrictions on law-abiding gun owners. But we have a Constitution so that the people who are left behind have somewhere to appeal. For now, at least, the Court seems to have shut its doors on them.

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Parting Shot: The U.S. Supreme Court Declines to Give Us Our Freedom - America's 1st Freedom