Donald Trump is Right: Supreme Court CAN Alter 2nd Amendment
As the American political landscape becomes more muddied and confused one indisputable fact has been overlooked by the US media in this week’s brouhaha over Donald Trump’s bizarre Second Amendment speech: if a Democratic President appoints more left-leaning Supreme Court justices in the next few years any new challenge to gun control laws could see a repeat of history where the Supreme Court reinterprets the Second Amendment.
Trump’s call for the “Second Amendment people” to do something about Hillary Clinton may be viewed as offensive and dangerous by many people but if rephrased in the context of “those who support the Second Amendment should get out and vote against Clinton” it makes a great deal of strategic sense.
What most Americans are unaware of is the fact that the Second Amendment was not originally a declaration of the rights of the individual. Historians generally agree that the amendment was proposed in response to Shays’ Rebellion, which was only barely put down by a hastily organized state militia. At its height the rebellion drew over 4,000 armed supporters who threatened to seize a national army in Massachusetts and to take control of the state government. In the end fewer than twenty people died and no more than a few dozen were wounded but many hard feelings remained and the rebellion brought to the limelight several issues that led to reforms and the call for a constitutional assembly.
The rebellion’s cause was economic. British merchants who wanted to do business with the newly independent United States insisted on being paid in hard coin rather than the Americans’ worthless paper money. American merchants had to scrape together all the coins they could find to pay their British suppliers and they pressured their own customers, including other merchants who supplied the frontiers and backwoods communities, for hard currency as payment.
As a result of the pecking order passing the burden down to the poorest people, who were unable to pay their debts in hard currency, farms were seized and debtors were thrown into prison. As anger welled up things got out of control.
When the US Constitution was ratified a new, strong central government took control of a country that had no cash reserves and few options for raising money. Worse, the founding fathers were of two minds about whether the country needed a standing army. On the one hand many of them including George Washington and Henry Knox, felt there should be a Federal military to handle the occasional rebellion, maintain security on the frontier, and be ready to fight off any foreign powers that decided to invade. On the other hand no one knew how to pay for this defensive force and many people feared a President might become a despot and begin using a standing army against the people.
The Bill of Rights was the government’s first step forward through the legal and ethical maze of allowing everyone individual liberties while guaranteeing collective success in peace and war. The Second Amendment, though, was designed to authorize the states to raise and maintain their own militia forces at need. The national government was delegating responsibility for fighting wars if wars need be fought to the states, who would also be the first line of defense against a despotic President.
Washington’s two terms in the office of President did much to allay fears of someone coming along and taking control of the new nation but those fears did not subside completely. The Militia Act of 1792 required that a Supreme Court Justice affirm the need for troops by certifying that a situation was beyond the means of local law enforcement to control. The Insurrection Act of 1807 was the Congress’ third step toward ensuring that the powers of the Presidency were not abused in despotic fashion. The Act limited the President’s ability to deal with armed revolt while ensuring action could be taken if necessary. In 1878 the Posse Comitatus further limited the powers of the Executive Branch in using the army against or amidst the citizenry. The law was amended in 1955 and again in 2006.
In 1794 the Whiskey Rebellion was the first test of the President’s power to act against insurrection. Western farmers, unable to pay excise taxes on distilled spirits, used armed force to resist arrest when a Federal prosecutor was sent to exercise warrants against distillers who were not paying taxes. President Washington sent negotiators to try to end the rebellion but he also began the process for calling up militia forces from several states. Justice James Wilson wrote an opinion stating that western Pennsylvania was in a state of rebellion.
A force of nearly 13,000 militia was assembled but because there were too few volunteers the states had to impose drafts to fill the ranks. The drafts led to riots in a few communities and militia were sent in to settle the issue. Maryland arrested 150 draft resisters. Fortunately when Washington himself met with the assembled Federal forces he became convinced that the rebellion would quickly collapse. He returned to Philadelphia and the army moved into the western counties of Pennsylvania. As Washington and his advisers concluded, the rebels dispersed, some of the ringleaders fled west, and a few arrests restored order.
That was the only incident in American history where a US President led troops in the field against his own countrymen. The Whiskey Rebellion ended quickly because of the overwhelming force that was raised and the prestige of the President, George Washington, who was a national war hero and a successful field commander.
These incidents, followed by others (including the American Civil War) firmed up the Legislative and Executive Branches’ adherence to and interpretations of the Second Amendment. In 1939 in deciding the case “United States v. Miller. 307 U.S. 174” the Supreme Court affirmed the interpretation that the Second Amendment was concerned with the need and right of the states to keep arms and raise militia.
But all of that was reversed in 2008 when the Supreme Court decided by a vote of 5 to 4 in the case of “District of Columbia v. Heller, 554 U.S. 570” that the Second Amendment applies to federal enclaves (such as the District of Columbia) and that the Second Amendment protects an individual citizen’s right to keep and use arms for lawful purposes, including defense of one’s home.
In the 2010 case “McDonald v. Chicago, 561 U.S. 742” the Supreme Court held in a 5 to 4 vote that the Second Amendment, by clarification provided through the Fourteenth Amendment, applied to the states as well as to federal enclaves. In the course of two years and through 2 decisions the Supreme Court altered more than 200 years’ application of the Second Amendment.
These decisions could, hypothetically, be reversed by future courts if enough justices who oppose these views are appointed to the bench and they are presented with one or more cases that allow the court to revisit these points.
It is worth noting that the 2008 and 2010 decisions did not strike down the original meaning and application of the Second Amendment. The constitutionally granted powers assigned to the states were not reversed, withdraw, or voided. The question of whether those rights or powers should be never arose. The court’s reasoning merely extends the acknowledged rights through the state governments to their constituent citizens because there are no states without citizens.
This was the popular if incorrect interpretation of the amendment for several decades. That interpretation has now been “legislated from the bench”, an ironically powerful exercise of self-appointed judicial review (established in the 1803 decision for “Marbury v. Madison, 5 U.S. 137”) of the type that many conservative politicians have opposed for generations.
It is arguable and worth arguing in my opinion that the conservative Supreme Court made the right decisions in 2008 and 2010 because the nation’s constitution should reflect the will and desires of the people, not the blind mandates of bygone generations who were faced with different concerns. Constitutional law is a living law and it must be adapted to meet the needs of every succeeding generation that inherits it. When the constitutional law stops evolving the nation will be in crisis.
But Donald Trump’s fear that a liberal-leaning court could accept one or more cases that lead to decisions which alter the current interpretation of the Second Amendment is realistic. The Supreme Court is viewed as the prize to be won in every Presidential election. Although the Supreme Court rarely reverses past decisions it does add greater flexibility to controversial decisions when it deems such change necessary. This is partly the result of compromise and partly the result of playing with fire.
No one is quite sure of where the Supreme Court’s power ends. Congress may enact laws to reverse interpretations of older laws but when a constitutional power or amendment is no longer useful or has become dysfunctional another amendment is required to resolve the issue. Such changes are not so easy to effect.
Regardless of what Donald Trump really intended by his words, his first point is correct. The Supreme Court can change the constitutional law of the land although it cannot do away with the constitution itself.