Opinion: Misinterpreting the Second Amendment

  • By Mark S. Johnson
  • Friday, May 12, 2023 2:30am
  • Opinion

This is a response to the editorial by David Bugg in the May 3, 2023 edition of the Juneau Empire.

First, it is interesting that military style semi-automatic rifles like the AR-15, which have been used in most major mass shootings in recent years and are not ideal for most hunting purposes, are referred to by Bugg as “sporting rifles”.

As cited by Rich Moniak in his Juneau Empire column on April 17, 2023, a 5-4 U. S. Supreme Court decision in 2008 (District of Columbia v Heller) written by the late Justice Antonin Scalia, affirmed “an individual right to possess a firearm unconnected with service in a militia.” As Moniak noted in his editorial, Scalia also wrote “Like most rights, the right secured by the Second Amendment is not unlimited.” The last line of that paragraph stated: “Miller’s holding (United States v Miller ‘1939’) that sorts of weapons protected are those ‘in common use of the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

According to Bugg, “Scalia did not consider the private ownership of commonly held and popular firearms to be in the category of “dangerous and unusual weapons.” Based on that interpretation, he suggests that AR-15s and similar firearms cannot be banned.

Since Justice Scalia is no longer alive, it is impossible to verify what he meant by quoting the phrase “in common use of the time” from the Miller decision. Was it referring to firearms in common use in 1791 when the Second Amendment was ratified? Or, perhaps the Miller decision, which was written in 1939, was referring to firearms in common use then (although it did not say “in common use at ‘this’ time”). AR-15s and similar weapons like the AK-47 did not exist when the Miller decision was written 84 years ago. Even in 2008, when the Heller decision was written, AR-15s and similar weapons were not nearly as popular as they have become in recent years. It appears that the phrase “in common use of the time” could be interpreted in different ways.

In 2020, there were about 20 million firearms purchased in the U.S., of which about 2.8 million were AR-15s (14%). An estimated 16 million Americans currently own AR-15s, which is less than 7% of the U.S. population. This may or may not meet the definition of “common use.”

Furthermore, the notion that a product in common use cannot be heavily regulated or banned is incorrect. Dangerous items like switchblades and lawn darts have been banned and many other popular consumer products like automobiles and cigarettes are heavily regulated. The goal has been to help make our society safer and healthier.

In the Heller decision, Scalia also wrote, “It (the Second Amendment) is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, concealed weapons provisions have been upheld under the Amendment or state analogues. The Court’s opinion should not be to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carry of firearms in sensitive places such as schools and public buildings, or laws imposing conditions on qualifications of commercial sale of arms.”

If gun rights advocates like Bugg don’t want their favorite weapons banned outright, which I believe the United States Congress and states have the authority to do under the U.S. Supreme Court’s interpretation of the Second Amendment, then they should be willing to work with gun safety advocates to find solutions to the growing firearm related carnage currently occurring throughout the United States. Some of those solutions include universal background checks, red flag laws and safe firearm storage laws.

• Mark S. Johnson has lived in Juneau for over 44 years and retired from the Alaska Division of Public Health. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a My Turn or letter.

More in Opinion

Have something to say?

Here’s how to add your voice to the conversation.

A bus passes by City Hall downtown in late June. (Clarise Larson / Juneau Empire File)
My Turn: Juneau City Hall and mail-in voting

I have voted for a new City Hall because I think it… Continue reading

(Juneau Empire File)
Letter: Current City Hall is an ongoing money pit

I have been following the ongoing dialog regarding the proposed City Hall… Continue reading

(Juneau Empire File)
Letter: Food for thought

As we ready ourselves to go to the polls soon, I invite… Continue reading

(Juneau Empire File)
Letter: Better ways to enhance Juneau’s capital status than new City Hall

Some promoters of a new City Hall claim our current city buildings… Continue reading

Recent clearcut logging on land owned by Sealaska Corp. at Cleveland Peninsula, just north of Ketchikan. (Photo by Rebecca Knight)
My Turn: ‘There are no landless Natives in Southeast Alaska’

Those are the words of Department of Interior Secretary Jim Lyons and… Continue reading

Clarise Larson / Juneau Empire File
Voters in the City and Borough of Juneau municipal election will decide this fall whether to approve $27 million in bond debt to fund the majority of the construction cost for a new City Hall. A similar $35 million measure was rejected last year.
My Turn: A viable alternative to a new City Hall

Juneau is being asked to decide on funding a new City Hall…again.… Continue reading

Most Read