March 26, 2017

Sina-cism: On guns, what professors ‘know’ just ain’t so

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As a rule, college professors tend not to appreciate firearms.

Chris Sinacola

Chris Sinacola

But when it comes to the teaching of history and law, they need to put personal feelings aside and arm their students with the truth.

A March 16 gun-control forum at Clark University illustrates exactly how many academics engage in a selective reading of history in order to advance particular viewpoints and interpretations.

Clark Professor of Political Science Mark Miller, commenting on the Supreme Court’s 5-4 ruling in District of Columbia v. Heller (2008), said that decision reflected a rural/urban divide on gun ownership.

And George Washington University professor Lois Schwoerer, author of a major study on the history of firearms in early English history, asserted that when our Founding Fathers set about crafting the Bill of Rights, they didn’t place a lot of emphasis on the English notion of gun control as a way of keeping government subjects unarmed.

In Schwoerer’s view, the amendments that emerged were, as the Telegram & Gazette paraphrased her, “more a way of pleasing opposing viewpoints.”

I am sure both professors understand a lot more about the history of firearms and the Bill of Rights than could be conveyed in a short forum and a still shorter newspaper account, but their views as summarized here are wrong.

Yes, District of Columbia v. Heller was a landmark case. The late Supreme Court Justice Antonin Scalia’s majority opinion struck down portions of D.C.’s ban on handgun ownership, and was the first time the high court had made clear the Second Amendment supports an individual’s right to firearms.

But the ruling had nothing to do with any rural/urban split, and pretending it does can only exacerbate any such split that does exist.

The word “urban” appears exactly once in Scalia’s 64-page opinion, and the word “rural” not at all. Neither word appears in Justice John Paul Stevens’ dissent.

Justice Stephen Breyer’s 44-page dissent, by contrast, uses rural and urban very liberally, 12 and 46 times, respectively. But even Breyer begins with the supposition that there is an individual right to firearms ownership, and then tries to show D.C.’s ban ought to have stood.

Scalia demolished Breyer’s “interest-balancing inquiry” by noting that the enumeration of rights — such as free speech, freedom of religion and gun ownership — removes such matters from the hands of government, which then lacks any power to decide “whether the right is really worth insisting upon.”

“A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” Scalia wrote. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

In other, simpler words, the Second Amendment confers a right to individual gun ownership, and no amount of tortuous legal reasoning to the contrary can change that fact.

Governments, whether state, federal or local, may and do offer reasonable regulations of gun rights, and Americans are known to argue long and passionately about what constitutes “reasonable.”

Fair enough. But government has no power to change the fundamental meaning of the Second Amendment.

Scalia noted — as Schwoerer did at the March 16 forum — that under English law, individual ownership of firearms was a right limited to Protestants, but that has no bearing on the right of individuals to own firearms in 21st-century America, and doesn’t change the grounds upon which that individual right was established in late 18th-century America.

Scalia wrote “… history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.”

Moreover, contrary to Schwoerer’s assertions at the March 16 forum, there is every reason to believe the Founding Fathers had tyranny very much on their minds when they drafted the Bill of Rights.

Doubters are referred to The Federalist No. 46, in which James Madison discusses the relative strengths of the federal and state governments, and the advantages that a heavily armed American populace would have in opposing any federal standing army.

Since 2008, the Heller decision has been followed by two other SCOTUS rulings, McDonald v. Chicago (2010) and Caetano v. Massachusetts (2016) that reaffirm the individual right.

Professors are entitled to their opinions, of course. But the meaning of the Second Amendment is not a matter of opinion. It’s established law, and a bulwark against tyranny.

Chris Sinacola is a Worcester Sun columnist. His observations on politics, current events, history and more appear every Sunday.

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