The San Juan Daily Star
The repeal of the second amendment revisited
By José L. Nieto Mingo
Special to The Star
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. (The Second Amendment to the Constitution of the United States, ratified on Dec. 15, 1791, as one of the first 10 amendments to the Constitution, known as the Bill of Rights.)
I have been a practicing attorney since 1992 and a law professor in various capacities since 1994. It is only natural that the law has evolved significantly in many areas, including individual constitutional rights. When I was a law student in the 1980s, sodomy between consenting adults was a crime, women had a constitutional right to safe and lawful abortions, and same-sex marriages were illegal virtually everywhere, including in Puerto Rico. All that has changed now, and it is only natural, expected and sometimes desirable, that the law evolves.
Another thing that has changed since my less jaded years was the understanding of an individual’s right to possess and carry firearms. Back then, practically nobody believed that there was an individual constitutional right to bear firearms. The Supreme Court decision that “recognized” that right did not come until much later, in the year 2008 in a case called District of Columbia v. Heller, 554 U.S. 570, where the Supreme Court held 5-4 that the Second Amendment guaranteed an individual’s right to possess firearms even if that individual was not a member of a state militia.
While written by “conservative” Justice Antonin Scalia, Heller was by all accounts a revolutionary decision. It was the first time in the 200 years after the enactment of the Second Amendment that the Supreme Court construed this constitutional provision as prohibiting federal or state governments from enacting gun control legislation. So what happened? Why the change? The short answer (and the correct one in this case) is that the composition of the Supreme Court changed over the years. It is that simple. Don’t let lawyers trick you into thinking otherwise, or allow them muddy your common sense. The same thing happened with a woman’s constitutional right to terminate her pregnancy, recognized by the Supreme Court in Roe v. Wade in 1973, and eliminated last year by the same Supreme Court (but with different justices) in Dobbs v. Jackson Women’s Health Organization.
Am I saying that all the decisions of the Supreme Court are based solely on politics and not on the law? Of course not. But, some decisions are only understandable on the basis of politics. Yes, yes, I know that everything is political, but I spend a good deal of time trying to convince my law students that there are cases where the Court’s decisions are indeed based on statutory interpretation and legal precedent. In fact, fortunately, most cases are decided that way. But we all know where the devil lives. There are cases that evade legal analysis regardless of how clever you are as an attorney or studious as a legal scholar (do the Supreme Court cases decided during the summer of 2016 relating to PROMESA ring a bell?)
So where am I going with this? To the insane number of murders committed every year in the United States by firearms, that’s where. Mass shootings are so common nowadays that, tragically, they are hardly news anymore. What concerns me is the degree of normalcy that the current interpretation given by the Supreme Court in Heller to the “constitutional individual right” to bear arms has taken. The younger observers of current events may get the impression that the right to bear arms is up there with the right of freedom of political speech, just to name one, as one of the “core” or “essential” constitutional rights that must be defended at all costs from sinister “liberal” or “woke” forces that are conspiring in New York or San Francisco to “disarm us” or “take away our guns.” After all, the argument goes, we all know that “guns don’t kill people. People kill people.” Such nonsense is now ubiquitous. Similarly outlandish is the claim that “an assault weapon is anything that can be used to assault a person, and therefore, a broom is an assault weapon.” I don’t remember ever reading about anyone anywhere walking into a school and killing hundreds of children with a broom. But the Second Amendment sophists are out there, well financed and organized, trying to convince people that gun control legislation is just a way of punishing “law-abiding” citizens instead of criminals. Funny how easily they forget that every criminal was once a law-abiding citizen, up until the time he or she broke the law, much like a marriage works up until the time that it does not.
Ten years after writing his famous dissenting opinion in the Heller case, and after he retired from the Supreme Court, Justice John Paul Stevens wrote an op-ed piece in The New York Times calling for the repeal of the Second Amendment. I know that in the current political climate, such calls for action would seem crazy and politically suicidal. They may very well sound crazy, but the rest of the world believes the American idea that a person has an individual constitutional right to own and carry a firearm, and that such a right is as important as all the other constitutions rights, is what is in fact cuckoo. Americans are deservedly proud of some of their contributions to the development of democracy and liberty, but I don’t think that the Second Amendment should be one of them.
José L. Nieto Mingo is an attorney and professor of law at the University of Puerto Rico.