FEST Writing Group

I am beginning to work on a piece regarding the Supreme Court from the perspective of the emotional system, with court decisions providing a view of the emotional process on the court. I think court decisions say a lot about the overall functioning of the court, government and citizenry at any given time. I am using the history of the Second Amendment as a way to assess the emotional functioning of the court. Following is an introduction to the  history of the Second Amendment. Hopefully, I will be able to add to this next time.

The Second Amendment reads in its entirety:

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.

For 218 years, judges concluded the amendment gave states the right to form militias, in present time known as the National Guard. The call to bear arms was related to the required membership in the militia for all males ages sixteen to sixty. In 2008 the Court overturned two centuries of precedent. In District of Columbia v. Heller, an opinion written by Antonin Scalia declared the Constitution confers an individual’s right to own a gun to be used for self-defense in the home. How did this happen?

Militias were military forces comprised of the citizenry. In England and in the colonies, militia service was an expectation for all white males. They were expected to own a gun and use it for training and service in their militia. The colonists feared a standing army and the militia was formed to  provide each state protection, free of interference from any effort to nationalize an army. Militias were to represent the will of the people. Militia service gained status after the British Stamp Act of 1765. Along with oppression came a more sophisticated militia, the stockpiling of arms, patriotic militia parades and a coordinated effort to ban together in defense of the colonies. Following the Shays Rebellion in Springfield Mass that demonstrated militias could align with “troublemakers” and a heated debate in the Constitutional Convention (1787) the militia came under federal control. It was thought an effective government required it. There is no evidence in notes/reports from the Constitutional Convention that private gun ownership was ever at risk and in need of inclusion in a Bill of Rights. (foot note)

The US v Crukshank came before the Court in 1876. Fraud and violence had marred the 1872 election in Louisiana. Republicans and Democrats each swore in a governor. A federal court ruled the Republican the winner. The two sides organized militias. In a tiny town, Colfax LA, the Black militia took over the local courthouse and installed Republican officials. On Easter Sunday the paramilitary White League stormed in and massacred one hundred freedmen. Most were murdered after they surrendered. White defendants were charged with violating the civil rights of the freedmen, including the right to bear arms. On appeal, the Supreme Court decided that the Second Amendment, like the rest of the Bill of Rights, applied Only to congress. The Court found the convictions of the men responsible for the massacre unconstitutional.

Crime increased after the Civil War. Guns were everywhere but there were some restrictions on behavior by cities and states.  Two vintage signs displayed in Dodge City and Wichita, KS in the 1890s support this: The Carrying of Firearms Strictly Forbidden and Leave Your Revolvers at Police Headquarters (p76).

In 1911, the Sullivan Act, a New York state law, required a license to own a handgun and made it a felony to carry a concealed gun outside the home. Other states and cities established their own policies on crime. After industrialization and the Great Depression, Americans pushed for a stronger national government with strong national laws.

The 1934 National Firearms Act imposed a large tax on weapons, particularly those used by big crime organizations. Machine guns and sawed-off shotguns had to be registered and could not be transported across state lines. The NRA supported the legislation. The Supreme Court upheld the Law in US v Miller by direct examination of the second amendment. The Roosevelt administration attempted to expand the law to include all guns; the gun owners and NRA protested.

Following the assassinations of Martin Luther King and Robert Kennedy in 1968 and the attempted assassination of Ronald Reagan, stricter federal gun laws, such as the Gun Control Act and the Brady Bill were passed. These laws established a federal licensing system for gun dealers and banned the import of military style weapons. People deemed dangerous could not purchase or possess a gun. The Brady bill required background checks and waiting periods before purchasing a gun. During the Clinton administration, assault weapons were banned.

Chief Justice Warren Burger noted. ” If the militia which was going to be the state army was to be well regulated, why shouldn’t sixteen, seventeen and eighteen year olds or any other age person be regulated in the use of arms the way an automobile is regulated? Its got to be registered.” (p84)

As time passed through the 1960s to the present, one saw the interpretation of the law increasingly polarized into two camps, conservatism vs liberalism or originalists and texturalists vs progressives.

Attorney General Edward Meese of the Reagan administration stated in his first address to the American Bar Association in 1985:

A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted in ideological predilection…Those who framed the Constitution chose their words carefully. The language they chose meant something. (p109)

Justice William Brennan responded publicly a few months later:

Originalism was arrogance cloaked as humility. Indeed it is far from clear whose intention is relevant – that of the drafters, the congressional disputants or the ratifiers in the states. We current justices read the Constitution in the only way that we can: as 20th century Americans. The ultimate question must be: What do the words of the text mean in our times? The genius of the Constitution …..is the adaptability of its great principles to cope with current problems and current needs. (p110)

Thurgood Marshall said:

I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound. To the contrary, the government that they devised was defective from the start, requiring several amendments, a civil war and momentous social transformations to attain the system of constitutional government and its respect for the individual freedoms and human rights, we hold as fundamental today ( NYTimes Chas. Blow 1-26-22).

In 2008, Heller v. District of Columbia came before the Court. Dick Heller contended a 1976 District law made it impossible for him to protect himself in his home. The law, one of the strictest in the nation, imposing a ban on handguns and requiring trigger locks on other firearms, was intended to reduce violent crime and provide greater safety to residents and visitors. Dick Heller was a security guard at the Thurgood Marshall Federal Judiciary building who wanted to bring his work revolver home to his high crime neighborhood (p119). The Court’s 5-4 decision essentially struck down the District law. For the first time the Court ruled that the second amendment supports an individual right to own a gun unrelated to militia service.

We cannot look at this decision in isolation or independent of the emotional environment at the time the decision was rendered. Judges are influenced by the emotional process in their families, within the Court, within the three branches of government and within the citizenry. Context is always important.

I am thinking that one can evaluate the court decisions based on characteristics of DoS at varying levels of functioning. There is no question that an originalist orientation focuses on content. What do the words mean? It has been said that some justices have looked at dictionaries from 1776 to clarify the meaning of the words. It can be said that progressives have a broader view but they too can get stuck in the right vs wrong, or one up one down positions. How does the present minority present their best thinking? How do you engage someone who thinks so differently than you do? It seems that level of  maturity may be a better guide to evaluate court decisions. An assessment  of the consequences of any given decision to the parties involved and on the  American citizenry ( particularly the most vulnerable or those with the fewest resources) should be an essential part of the decision making process. Failure to view the Constitution in the context of the current times and the needs of the day is a huge failure and indicates a loss of flexibility in thinking be it originalist or progressive. If we were to seek a higher level of maturity in the decision making process,  we may find that court decisions open the door to a more orderly and thoughtful outcome for the American people.