A Message from the President of Americans Against Gun Violence
August 12, 2016

It’s now been exactly two months since the worst mass shooting in US history -  the Pulse nightclub massacre in Orlando, Florida, in which 49 people were killed and 53 wounded. Despite an overnight sit-in staged by about 170 members of Congress 10 days after the shooting, Congress has not even been able to agree to take a vote on the most limited of gun control proposals - prohibiting individuals on the terrorist watch list from buying guns. And the Pulse nightclub massacre seems to have dropped off the radar of the national news media. Instead, the media has focused recently on the question of whether the Republican presidential nominee, Donald Trump, tacitly endorsed the assassination of his Democratic opponent, Hillary Clinton, or Supreme Court judges that she might appoint if she’s elected, when he said at a political rally in North Carolina:

Hillary wants to abolish – essentially abolish – the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges, nothing you can do folks. Although the Second Amendment people, maybe there is, I don’t know.

When controversy erupted following his remarks, Trump denied that he was endorsing violence against anyone, asserting that he was only trying to encourage gun owners to vote against Clinton. The notion that Trump’s remarks might be interpreted by zealous gun owners as an endorsement of the use of firearms to assert their political will, however, is not beyond the realm of possibility. Larry Pratt, the executive director emeritus of Gun Owners of America, said during his Gun Owners News Hour radio show in June of this year:

The courts do not have the last word on what the Constitution is….And we may have to reassert that proper constitutional balance, and it may not be pretty. So, I’d much rather have an election where we solve this matter at the ballot box than have to resort to the bullet box.”

Larry Pratt is not the only gun owner in the United States who believes that the Second Amendment was intended to confer a right of the people to use guns to defy elected leaders. This manner of thinking has an official name - the “insurrectionist idea.” The leadership of the NRA has made thinly veiled endorsements of the “insurrectionist idea” on numerous occasions. For example, the late movie actor and one time president of the NRA, Charlton Heston, received a tumultuous standing ovation at the annual NRA convention in May of 2000 when he held a flintlock musket over his head and said, with regard to Democratic presidential candidate, Vice President Al Gore, who supported modest gun control measures:

So, as we set out this year to defeat the divisive forces that would take freedom away, I want to say those fighting words for everyone within the sound of my voice to hear and to heed, and especially for you, Mr. Gore: “From my cold, dead hands!”

And support for the “insurrectionist idea” is not limited to members of the male gender. During her unsuccessful run for U.S. Senate in Nevada in 2010 against then Senate Majority Leader Harry Reid, who, like Al Gore, supported modest gun control measures, Republican candidate Sharron Angle proclaimed:

When you read that Constitution and the founding fathers, they intended [the Second Amendment] to stop tyranny….It’s to defend ourselves. And you know, I’m hoping that we’re not getting to Second Amendment remedies. I hope the vote will be the cure for the Harry Reid problems.

The notion that the founders of the United States would include an amendment to the U.S. Constitution to ensure that citizens would have a constitutional right to defy elected officials through armed insurrection is inherently absurd, yet the “insurrectionist idea” is popular among many fringe gun owners. The ominous implications of the insurrectionist movement for American democracy are discussed in detail in the book, Guns, Democracy, and the Insurrectionist Idea, by Horowitz and Anderson.

Although Donald Trump’s remarks and their potential to incite the insurrectionists are a cause for legitimate concern, Hillary Clinton’s response, in my view, was disappointing. She did not address the Second Amendment itself, but instead responded by saying at a rally in Iowa:

Words matter my friends, and if you are running to be president or you are president of the United States, words can have tremendous consequences.

While Hillary Clinton’s statement is undoubtedly true, I would have preferred to hear her say that the Second Amendment was never intended to guarantee an individual right to own guns; that if elected President of the United States, she would most definitely appoint a Supreme Court justice who would tip the balance on the Court and overturn the 2008 Heller decision, in which a narrow five to four majority, including the late Antonin Scalia, reversed over two centuries of legal precedent in ruling for the first time in US history that a ban on handguns violated the Second Amendment; and that she would go a step further and support a 28th amendment to the US Constitution that would establish once and for all, as the Supreme Court ruled in 1939 in Miller and again in 1980 in Lewis, that the Second Amendment confers a collective right of the people of the states to maintain a well regulated, armed militia such as the current day National Guard, not an individual right to own any kind of lethal weapon.

As a lawyer herself, Hillary Clinton knows that the 2008 Heller decision was wrong. She was surreptitiously recorded at a private fundraiser in 2015 as stating, with regard to the Heller decision:

The Supreme Court is wrong on the Second Amendment, and I’m going to make that case every chance I get.

A campaign advisor, Maya Harris, confirmed in an email to Bloomberg Politics in May of this year that Clinton believes that the Heller case was “wrongly decided.” Publicly, though, Clinton herself has not questioned the Heller decision or disputed the notion that the Second Amendment was intended to confer an individual right to own guns. On the contrary, in a presidential debate in January 2008, for example, she stated:

I believe in the Second Amendment. People have a right to bear arms. But I also believe that we can common-sensically approach this.

Similarly, in her acceptance speech for the Democratic presidential nomination in July of 2016, she stated:

I'm not here to repeal the Second Amendment. I'm not here to take away your guns. I just don't want you to be shot by someone who shouldn't have a gun in the first place.

Despite knowing that the Second Amendment was never intended to confer an individual right to own guns and that the 2008 Heller case was “wrongly decided,” as a candidate for President of the United States, Hillary Clinton apparently believes – as every other presidential candidate in recent memory, including Barack Obama, has apparently believed - that to state the truth about the Second Amendment would jeopardize her chances of getting elected. This is not surprising.

A Gallup poll conducted in February of 2008, four months before the Supreme Court issued its radical reinterpretation of the Second Amendment in the Heller decision, indicated that 73% of the American public, including 91% of gun owners, believed that the Second Amendment conferred an individual right to own guns. This was definitely a mistaken belief at the time, for as noted above, the Supreme Court had clearly ruled in the Miller decision in 1939 and again in the Lewis decision in 1980 that the Second Amendment conferred a collective right of the people of the states to maintain armed state militias, not an individual right to own firearms. But politicians are unlikely to openly express views that are opposed by the majority of their constituents, mistaken or not, especially on the gun issue. Other Gallup polls have shown that a large percentage of the US electorate – 80% in 2015 – strongly considers a candidate’s views on guns in deciding which candidate to vote for, with 26% of the electorate voting only for candidates who share their own views on guns.

Even following the Heller decision in June of 2008, the belief that the Second Amendment confers an individual right to own guns is only partially correct. Strictly speaking, the majority opinion written by the late Antonin Scalia does not go beyond guaranteeing an individual right to own handguns “used for self defense in the home.”  The majority opinion specifically states that the Second Amendment does not prohibit gun control laws including, but not limited to, bans on ownership of firearms by “felons and the mentally ill,” bans on carrying firearms in “sensitive places such as schools and government buildings,” or the carrying of “dangerous and unusual weapons.” (Scalia’s majority opinion does not address the fact that guns in the home are much more likely to be used to kill or injure a household member than to be used for self defense, or the fact that while handguns are not “unusual,” they are certainly “dangerous,” accounting for approximately 80% of all firearm related deaths in the USA.)

Following the 2008 Heller decision (and the related 2010 McDonald decision, in which the Supreme Court ruled that Heller applied not just to the District of Columbia, but to the states as well), hundreds of lawsuits have been filed by the gun lobby against all forms of gun controls laws. Most of these challenges have been rejected by the courts. In particular, the Supreme Court refused to hear challenges to assault weapons bans in the state of Maryland and the City of Highland Park, Ohio, and the 9th Circuit Court of Appeals recently ruled that the Second Amendment does not confer a right to carry a concealed firearm. The full impact of the Heller and McDonald decisions, though, remain to be seen.

In an interview on the MacNeil Lehrer News Hour in 1991, the late Supreme Court Chief Justice Warren Burger called the NRA’s misrepresentation of the Second Amendment as guaranteeing an individual right to own guns “one of the greatest pieces of fraud -- I repeat the word ‘fraud’ -- on the American public by special interest groups that I have ever seen in my lifetime.” Currently, Americans Against Gun Violence is the only organization in the entire country that is working to expose this fraud. Clearly, we’ve got our work cut out for us. In order to adopt the same types of stringent gun control regulations in the United States that are already in place in every other high income democratic country in the world, though, including stringent regulation if not a complete ban on civilian ownership of handguns, we’re going to need to first overturn the Heller decision. Educating the American public and elected officials concerning the true history and intent of the Second Amendment is the first step in accomplishing that goal.

Thanks for your support of Americans Against Gun Violence, including our work to debunk the myths surrounding the Second Amendment. Please refer to the Facts and FAQ’s page of the Americans Against Gun Violence website for more information about the Second Amendment including ways that you can help promote greater awareness of the amendment’s true history and intent.

Sincerely,

Bill-sig

Bill Durston, MD