Dick Spotswood: Needed reinterpretation of Second Amendment should be considered
It can happen here. I’m not referring to the title of Sinclair Lewis’ 1930s book envisioning how a right-wing domestic fascist movement ends America’s democracy.
I’m pondering a recent incident where, as reported in the IJ, a 52-year-old Novato man, Robert Burwood Smith, made “credible threats to commit acts of violence (at Marin’s Civic Center) via shooting and had access to firearms. Sheriff’s deputies searched three locations associated with Smith, one in Novato and two in Richmond. … They recovered a multitude of weapons, including a shotgun, pistols, rifles, assault rifles, unregistered ghost guns and ammunition.”
In what appears to be credited to good luck and on-the-ball policing, Marin avoided the possibility (in this case) of being on the dreaded list of locales where armed killers carry out their macho delusions.
What’s surprising is that Marin’s reaction to the incident was so blasé. After shootings at Sandy Hook, Chesapeake, Colorado Springs, Uvalde and Florida’s Stoneman Douglas High School, we collectively seem to forget that it can happen here in Marin.
What was once a shocking aberration, now seems to be just another part of American life. Note the word “American.” No other Western nation faces similar daily threats. It’s not that other countries don’t have proportionately similar numbers of mentally unstable and violent residents. It’s that those nations aren’t armed camps where firearms, both legal and illegal, are commonly available to anyone with cash.
What this has to do with the Second Amendment’s guarantee of a “well-regulated militia” baffles me.
What those words imply is in dispute. Does it mean that America has a right to a “well-regulated” citizen militia? If so, that’s each state’s National Guard. Or does it suggest that every adult has a right to carry any kind of firearm anywhere they choose. The fact that “open carry” is the law in many rural and southern states is due to Supreme Court decisions.
The question is what to do about this threat to every American’s constitutional right to “the pursuit of happiness.” That includes the right to be free of the threat that one’s children or grandchildren won’t be killed at school due to a crazed conspiracy theorist armed to the teeth.
Gov. Gavin Newsom just signed a law that may do some good. Assembly Bill 1594 allows governments and the impacted public to individually sue for injuries caused by guns. It’ll likely be tested in court on the argument that federal law banning such litigation takes precedence.
Modeled after Texas’ abortion law authored by Republican Gov. Greg Abbott, California’s AB 1594 allows private civil suits for damages against the “firearms industry.” That term includes any entity “engaged in the manufacture, distribution, importation, marketing, wholesale, or retail sale of firearm-related products.”
Its unstated deterrent is that the cost of retaining lawyers to defend a landslide of litigation is ruinously expensive.
Even if AB 1594 passes court muster, it’s only a stopgap. The viable long-term strategy is political. The GOP again shows a way forward.
The Republicans’ priority was to select only Supreme Court justices who’d eliminate Roe v. Wade. Marinites might not like it, but the GOP’s no-holds-barred strategy worked.
Democrats and independents should follow a similar route enabling a future court to reinterpret the Second Amendment. The Supreme Court’s decision in Dobbs v. Jackson ending the constitutional right to abortion eviscerated the doctrine of “stare decisis,” the rule that justices should follow the precedent of previously decided cases when weighing new matters.
If Roe v. Wade was “wrongly decided,” there’s no reason a future Supreme Court can’t take the same position regarding past Second Amendment interpretations. That’s likely the only way to make America a place where all can enjoy freedom and liberty by living free from madmen with guns.