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Maybe the 2nd Amendment is the suicide pact

You can set your clock by the daily mass shooting

Step away from the computer for a couple of hours and there’s another mass shooting in the news. So many, in fact, that if you blink you’ll miss one. Or several. I did.

NPR:

According to the Gun Violence Archive, an independent organization that collects data from over 7,500 sources, eight people have been killed and another 45 injured in the five days following the massacre at Robb Elementary School in Uvalde.

A mass shooting, defined by the Gun Violence Archive, is an incident in which four or more individuals are shot and either injured or killed, excluding the gunman.

Wednesday, May 25

In Philadelphia, a man riding a mountain bike opened fire Wednesday night on a home where a young man and his date were preparing to leave for prom, CBS3 Philadelphia reported. Police said the gunman shot a 19-year-old man, a young woman – also 19 – and the young woman’s 34-year-old mother and 60-year-old man.

The boy was in critical condition and the other three victims were stable as of Thursday morning.

Friday, May 27

Six people were shot at a graduation party in Alabama early Thursday, The Anniston Police Department reported on Facebook. None of the injuries were life threatening. Over 150 people, as young as 14, were at the party at the time. Stray bullets struck nearby vehicles, the police reported, and several firearms were recovered at the scene.

That same day, ABC13 in Michigan reported a 40-year-old mother and her three children – ages 3, 4 and 6 – were shot killed about 50 miles north of Grand Rapids. The mother’s stepfather suffered a gunshot wound to the head and was in critical condition as of Saturday. A surviving daughter told ABC13 that the stepfather shot the children and then the mother.

Saturday, May 28

In Chattanooga, Tenn., six people were shot a block away from the Tennessee Aquarium downtown, Local 3 News and CNN reported. Two of the six victims suffered life-threatening injuries. The victims were in the teens and early 20s.

Police in Colorado Springs, Colo., are investigating a shooting in a bar parking lot that killed one man and wounded three women, KKTV11 News reported. Witnesses said the shots appear to have come from a moving vehicle.

ABC30 in California reported that three teenagers were wounded and one man killed in a shooting in Fresno Saturday night. The three teenagers expected to survive, but the man, in his 20s, died from his injuries.

Shots broke out at a house party in Malabar, Fla., Saturday night, striking four people between 15 and 18 years old, 1010 News reported.

Sunday, May 29

Fox32 in Illinois reported that five people remain in serious condition after they were shot in Chicago’s West Garfield Park. The victims range from 16 to 33 in age.

In Taft, Okla., a 26-year-old man is in custody in connection with a shooting at a crowded Memorial Day festival that left one 39-year-old woman dead and seven others wounded. The surviving victims range from 9 to 56 and are suffering from non-life-threatening injuries, Fox23 News reported.

Police in Detroit told WWJ News Radio that a group of three men and two women came under fire around 3:40 a.m. Two of the men who were struck are in stable condition, but the third is in critical condition, WWJ News Radio reported. The women weren’t shot, but received minor injuries from broken glass. (The Gun Violence Archive includes this incident on its list. NPR has reached out to the group to clarify its methodology in this case.)

The Merced Sun-Star in California reported Sunday morning that four people, two youths and two adults, were shot sometime after midnight Sunday. One of the victims was killed, one is in critical condition and two were treated for non-life-threatening injuries.

Bad takes are as common as mass shootings these days, and spit out like bullets from a 30-round magazine. Second Amendment absolutists and bad takes by the U.S. Supreme Court have helped land us here. The world looks on in horror at the gun-fetish madness gripping the United States.

Reading the NPR account above, it is hard not to wonder if in fact the Constitution is a suicide pact. Or at least the 2nd Amendment to it.

Found this interesting account of that cliché from a Columbia law professor from 2003. The suicide pact rhetoric, writes George P. Fletcher, “has far more frequently been invoked in the course of arguments for protecting constitutional rights – not arguments for sacrificing them to security concerns.” But for protecting whose rights and whose freedoms? Fletcher writes:

The Genesis and History of the “Suicide Pact” Slogan

Justice Robert Jackson was the first to use the phrase “suicide pact” – in his dissent in the 1949 case of Terminiello v. Chicago. His initial usage was also, to my knowledge, the first and only anti-civil liberties judicial usage of the maxim.

In Terminiello, the Supreme Court upheld the free speech rights of a right-wing hatemonger. In Jackson’s dissent, he suggested that the inflammatory speech was likely to produce a violent reaction from the mob outside. Jackson had just been a prosecutor in Nuremberg. And he was fearful that the kind of fascistic acts he had just prosecuted might become commonplace in the United States. He worried about an American version of the Weimar complex: If we do not crack down on Hitlerian types, he thought, our fate may be like that of Germany in 1933.

In the 1960’s Justice Arthur Goldberg revived the “suicide pact” maxim in Kennedy v. Mendoza-Martinez and Aptheker v. Secretary of State, but for a very different purpose. Goldberg protected the rights of Communists to travel, and of wartime military deserters against loss of their citizenship, at the same time that he gave verbal deference to the tough-minded view that we would never commit national suicide. The result was pro-civil liberties, and the idea was that the initial Constitutional design was wise, and should be followed.

Even since then, the standard usage of the phrase has been to guard the judge’s flank against critics anxious about the stability of American democracy – not to kowtow to such critics by sacrificing liberty for security. The phrase is used to explain that Constitutional rights can be upheld without having security catastrophically suffer.

That last proposition is seriously in question. Especially with a Supreme Court that in Heller (2008) thumbed its nose at common understanding and common sense. The late Justice Warren Burger’s take was prescient:

The Burger quote continues, “The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”

The NRA’s “twisted interpretation” has warped the court majority, twisted people’s minds, and maimed and killed uncounted thousands. We are all less secure as a byproduct.

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