By Larry Keane
Everytown for Gun Safety is now claiming the Second Amendment right to keep and bear arms is a loophole that needs to be fixed. They’re so convinced, they’ve listed this loophole as a “fact” of the Second Amendment.
It’s beyond a misunderstanding of the text of the Second Amendment. It’s an attempt at a wholesale revision of it.
The maneuver, however, is hardly surprising.
Everytown labeled protestors carrying firearms as “extremists” and say gun owners are using recent protests “as opportunities to openly display military-style firearms to incite fear, suppress civil discourse, and threaten public safety.”
Even in gun-owning circles, there is debate as to whether protesting with firearms is effective. The denigration of those publicly carrying firearms using fear-inducing labels is hardly new as well. Moms Demand Action, a gun control group affiliated with Everytown, previously maligned protestors as “white supremacists” and invoked fears that protests last year in Richmond, Va., would descend into the chaos of Charlottesville protests. Democratic Gov. Ralph Northam fanned the flames. He declared a state of emergency, banned firearms on the state capitol grounds and fenced off the area. In reality, Richmond protests were peaceful. Over 22,000 attended, representing all gun owners in Virginia, black and white together. A single arrest was made, but charges were later dropped for wearing a mask. Protestors even cleaned up their own trash.
Just days ago, black gun owners marched in Tulsa on the same day President Donald Trump held a campaign rally. The incident went unnoticed by Everytown for Gun Safety or Moms Demand Action. That show of support for the right to keep and bear arms was also peaceful.
Everytown, though, clutched the pearls upon learning it is perfectly legal for law-abiding Americans to openly bear arms in 41 states. “Open carry is a dangerous policy opposed by the public,” Everytown wrote in their “factsheet.” “A visible gun has been found to make people more aggressive; therefore open carry makes it more likely that disagreements will turn into violent conflicts.”
Ignoring Real Problems
Yet, not a single act of violence occurred during the demonstration by African American gun owners in Tulsa nor the protest last January in Richmond. Contrast that with what’s going on in Seattle’s Capitol Hill Occupied Protest (CHOP) Zone, where one was killed and another wounded by gun shots in a police “no-go” zone. In fact, CHOP “protesters” blocked the police and EMTs from responding to the crimes and aiding the injured. Residents are understandably fearful. That forced Seattle Democratic Mayor Jenny Durkan to walk back her claim the protests were a “summer of love.” In Chicago, 14 were killed by criminal violence over the weekend, including four children, and another 100 were wounded.
Everytown is mum about these events, but has a pretty bold opinion about labeling an explicitly delineated right as a “loophole.”
“… And Bear Arms, Shall Not Be Infringed.”
U.S. Supreme Court Justice Clarence Thomas seized upon this very notion when he drafted his recent dissent in Rogers v Grewal.
“Thus, the right to carry arms for self-defense inherently includes the right to carry in public,” Justice Thomas wrote. “This conclusion not only flows from the definition of ‘bear Arms’ but also from the natural use of the language in the text. As I have stated before, it is ‘extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.’”
In that dissent, Justice Thomas explains that Second Amendment rights are pre-existing, or that they predate the drafting of the U.S. Constitution and the Bill of Rights. As Heller explained, “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’” The rights to bear arms outside the home, he explained, are rooted in English law, which provided the foundation for U.S. law. Justice Thomas noted the Statute of Northampton from 1328. That law provided no one was permitted to bring force as a means to threaten the peace, but was hardly a complete ban on bearing arms, as officers were instructed to arrest only those bearing arms to disturb the peace. In fact, the same statute was used by England’s King James II to disarm the public, but judges then ruled the law only applied to the use of arms for the crime of terrorism.
King James was ultimately deposed, and the English Bill of Rights was drafted and accepted, which included the right to privately bear arms which was “‘an individual right protecting against both public and private violence.’ And for purposes of discerning the original meaning of the Second Amendment, it is this founding era understanding that is most pertinent,” Justice Thomas wrote.
Rights, Not Loopholes
The Founders and those who ratified the U.S. Constitution acknowledged the right to carry arms in public. Justice Thomas noted the racist post-Civil War laws aimed to disarm freed slaves, but courts then found the right to bear arms in public was often the only way black citizens could protect themselves from mob violence.
Even today, states place “justifiable needs” or “good cause” requirements to exercise the individual right to publicly bear arms, which caused Justice Thomas to dissent to the Supreme Court’s decision to avoid answering the question when history and the law are so clearly evident.
Justice Thomas is correct. The Framers didn’t write a giant loophole, as Everytown alleges. The right to own a gun goes hand-in-hand with being able to carry that gun. It’s not a mistake or an oversight. It’s an explicit right. “In short, it would take serious linguistic gymnastics—and a repudiation of this Court’s decision in Heller — to claim that the phrase ‘bear Arms’ does not extend the Second Amendment beyond the home.”
Larry Keane is Senior Vice President of Government and Public Affairs and General Counsel for the National Shooting Sports Foundation, the firearms industry trade association.