t

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

Web
Have something to say?

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

Former President Donald Trump speaks to a capacity crowd at the Alaska Airlines Center in Anchorage on July 9, 2022. (Mark Sabbatini / Juneau Empire file photo)
Opinion: A primary election of ill-informed voters

On Tuesday, Republicans across the state will help anoint Donald Trump as… Continue reading

HEX Cook Inlet, LLC and Subsidiaries presents a check to the Alaska Industrial Development and Export Administration in October of 2023. (Photo courtesy of the Alaska Industrial Development and Export Administration)
My Turn: The Legislature should rein in AIDEA

This story has been updated to correct the photo caption, which originally… Continue reading

(Juneau Empire file photo)
Letter: What’s wrong with this picture?

At 1:30 p.m. Wednesday, Jan. 24, I and several other moms and… Continue reading

Palestinians sell goods next to buildings destroyed by an Israeli airstrike in Rafah, Gaza Strip, Wednesday, Feb. 21, 2024. An estimated 1.5 million Palestinians displaced by the war took refuge in Rafahor, which is likely Israel’s next focus in its war against Hamas. (AP Photo/Fatima Shbair)
My Turn: Palestinian residents are helpless victims in attacks made by leaders

In 1948 the United Nations gave the country of Palestine to European… Continue reading

The Juneau School District administrative office, which would be closed and turned over to Juneau’s municipal government under a pending consolidation plan. (City and Borough of Juneau photo)
Opinion: Juneau School District edges closer to balanced budget, but what’s next?

After a marathon public hearing last week, the Juneau School District (JSD)… Continue reading

Students at Juneau Community Charter School play chess in a classroom. (Juneau School District photo)
Opinion: Final Draft – Civic education and the problem with standardized testing

There’s a lot of intense disagreements with the education bill that the… Continue reading

Joe Geldhof is a parent of two daughters who attended public schools in Juneau and a former Juneau Assembly candidate. (Clarise Larson / Juneau Empire file photo)
My Turn: Focus on saving teacher jobs, not buildings or nostalgia, to fix school district crisis

The numbers are bad. Really bad. Even dire. Juneau is losing population.… Continue reading

Most Read