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The unwell, unregulated militia

Andrea Laidman | Monday, February 11, 2008

On Feb. 1, 15-year-old Nicholas Browning shot and killed his parents and two younger brothers in their home outside Baltimore with his father’s handgun, following an argument with his dad over an upcoming Boy Scout camping weekend.

On Feb. 2, five women were shot and killed while shopping at a retail clothing store outside of Chicago, during an attempted robbery.

On Feb. 7, a long-disgruntled resident of Kirkwood, Mo., shot and killed one police officer outside of a City Council meeting, before entering the meeting room and continuing his rampage. Four more people were shot and killed, while two – including the town’s mayor – remain in serious condition. The shooter himself was shot to death by police during the incident.

On Feb. 8, a female student of Louisiana Technical College shot and killed two of her classmates and herself in a classroom on the Baton Rouge campus.

Also on Feb. 8, an eight-year-old was shot in the head and killed while inside her home in Indianapolis. The girl was the fourth preteen child to be shot to death in Indianapolis in 2008.

On Feb. 9, 11 people were shot and killed in three separate incidents across Milwaukee’s north side – all within a 90-minute time span.

A casual eye on the news or an internet search for recent shootings reveals that gun violence in the U.S. is out of control.

The tragedies above are unfortunately representative of repeated storylines in crime reports of shootings: Innocent victims are caught in the line of fire. A member of a community who perceives himself as disenfranchised picks up a gun as his supposed last resort. Young people both pull the trigger and are targets of bullets, transformed into killers or cheated of their lives in one terrifying moment.

On March 18, the Supreme Court will hear oral arguments in a case that determines whether the much-debated Second Amendment right to bear arms applies to the individual. Rampant gun violence as illustrated by the stories above – just a sampling of the shootings that occurred in the U.S. this month – will serve only as a backdrop to this question of constitutional interpretation.

But even without serious consideration of the violence tied to legally-owned guns across the nation (a statement that could characterize the speeches of Republican primary frontrunners as well as the arguments in the pending Supreme Court case), a look at historical precedent shows that the issue of gun ownership rights is much more complex than the NRA would have us think.

At issue in the case is Washington, D.C.’s legislation restricting citizens from legally owning handguns – a ban that has been in place for over 30 years in the district.

Following legal challenges from residents that began in 2003, a federal appeals court last year found the handgun ban unconstitutional, citing the Second Amendment.

But the city’s officials respond that lifting the ban will only make violence worse. Washington, D.C., Mayor Adrian Fenty held a rally this fall with the message that more handguns mean more crime. Washington Police Chief Cathy Lanier agreed: “The weakening of the district’s gun law will inevitably lead to an increase in injury, and worse, death.”

The district’s legal argument in the upcoming case before the Supreme Court takes the position adopted by a majority of the nation’s appeals courts that the Second Amendment guarantees a right to bear arms only as a collective, civic right related to military service.

Precedent is on their side. Not one law regulating the sale or possession of guns was struck down on the basis of the Second Amendment for two centuries following its ratification.

Throughout the 19th century, states not only regulated sales and ownership of guns, but many enforced legislation that prohibited carrying concealed firearms.

The Courts consistently upheld these laws against Second Amendment challenges.

Even the U.S. Supreme Court in a 1931 case indicated that the right to possess firearms was written in regards to maintaining the “well-regulated Militia” of the Second Amendment. The decision held that the Second Amendment “must be interpreted and applied” with the view of maintaining a militia.

The 1931 decision has been cited with little exception by all the United States Circuit Courts decisions that have rejected legal challenges to federal firearm regulations over the last six decades.

On Friday, Dick Cheney exercised his title of President of the Senate, and added his signature to an amicus brief signed by 55 senators and 250 representatives, which urges the justices to oppose the ban and uphold the individual-based interpretation of the Second Amendment.

These lawmakers need to bear in mind the violence that occurred across the country last week, and that which will surely follow – similar incidents, many involving legally-owned guns, in the weeks to come. But lawmakers, like the justices, must also look to two centuries of precedent related to common sense and pragmatic gun regulation. Until they do, lists of tragedies like the one at the start of this piece will be easily compiled.

Andrea Laidman is a senior political science and peace studies major. Her column’s title recalls advice given to John Adams by his wife, Abigail: “We have too many high sounding words, and too few actions that correspond with them.” She can be contacted at alaidman@nd.edu

The views expressed in this column are those of the author and not necessarily those of The Observer.