Analysis by W. J. Blacklidge

June 3, 2023

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 

–Congressional Research Service, 2022

The 2nd Amendment in the National Archives has a total of four commas that have challenged legal interpretation for years.  Scholars also know the Thirteen States ratified the amendment using handwritten copies that had 2-4 commas, providing non-standard syntax.  In 2008, the precise meaning of the Second Amendment was central to a Supreme Court 5-4 decision that favored the view that the first half of the Second Amendment (militia) was “prefatory” – an introduction — to the “operative” clause of the right to bear arms.  In dissent, four judges took the Second Amendment’s wording as a singular objective to allow for a well-regulated Armed militia.  Justice Thurgood Marshall observed in 1987 that the Constitution and its amendments were not “forever fixed” and required “momentous social transformation” to rectify defects.  Constitutionalists argue the opposite, calling for fixed meaning, as the 2008 decision implied.  Yet that decision, even as a Constitutionalist, is considered flawed by most experts in historical research.  They believe the judges used “presentism”, and applied today’s sensibilities, knowledge, and grammatical syntax to historical documents.  Eighteenth Century writing experts consider the syntax in the Second Amendment (4 commas) to reflect the habit of providing a visible pause, or a breath. This syntax no longer exists, and contemporary understanding of the phrasing intended the connection between militia and arms.  

Moving to the Twenty-First Century, the poster child for unfettered gun access today is the AR-15, a mass-market version of the U.S. military M-16/M-4 infantry automatic assault weapon.  A semi-automatic weapon, it has a rate of fire of 45-60 rounds/minute, firepower unimagined in the late 1700’s.  The weapon was designed to upgrade combat lethality from World War II weapons and balance against the Soviet Union’s Kalashnikov AK-47.  Forbes Magazine cites the National Shooting Sports Foundation to estimate 20 million AR-15 style weapons are now in circulation to the public and police forces in the United States.  Avoiding the term “assault weapon”, the gun industry labels the AR-15 as a sport, hunting, and self-defense weapon.     

Taking public safety into consideration in Constitutional application has precedent.  The First Amendment free speech clause has evolved to include public safety limitations – the yelling “Fire” in a theater litmus test.   Public safety considerations require a look at the annual gunshot deaths in America.  48,830 firearm deaths occurred in 2021, an 8% increase from the year before and a 10,000 increase over 10 years.  The only decrease in gun deaths in the past 40 years was during the assault gun sales ban of the 1990’s – by about the same 10,000.  Gun death is now the #1 cause of death (4752) for children under the age of 19, and 2590 under 18.  No mature western democracies have near this gun lethality.  France and Canada top the list with 48 young dead each in 2020.  On average, 137 U.S. citizens die each day from gunshot wounds.  

Harvard University analyzed the category “Gun Threats and Self-Defense Gun Use” with multiple studies over the years to invalidate the gun advocate argument that “millions of annual self-defenses use” occur with law abiding citizens.   Harvard research found less than 1% of actual crime victims responded with a gun in legally supportable self-defense.  The Agency for Healthcare Research and Quality (AHRQ) statistically discovered on average a combined 321 gunshot wounds and deaths daily.  The Harvard studies showed many alleged home-defense incidents were unlawful uses of weapons – such as domestic disturbances, confrontational threats, and preemptive firings.  The highest statistical record of “defensive gun use” resulting in death was 2118 incidents in 2017, or 5-6 days.   

 So where are we from a public safety point of view? Unfettered access will statistically result in over 50,000 deaths annually by next year without intervention.  Even with the highest count of self-defense fatalities recorded in 2017, we are being asked to absorb 24-25 times that number of gunshot deaths to facilitate the perceived constitutional right of 30% of the American public (gun owners-Pew Research, 2021) a less than 1% chance to use deadly force in self-defense.  

50,000 deaths annually from the same source would normally be investigated as a public health issue by the Center of Disease Control (CDC).  But the CDC is Congressionally forbidden to dedicate budgetary funds to gun injury/death research.  Over half of U.S. citizens favor gun control mechanisms (Pew Research).  Doing nothing is unsustainable statistically for public health and analog to continuously yelling FIRE in a theater.  Steps are needed from all three branches of government to arrest the trend.  Gun use is a weapons system with two components, the human element and mechanical element (gun).  It is simply more efficient to manage the mechanical component to mitigate the human component’s propensity for miscalculation.     

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 1 Congressional Research Service, 2022

2 Scalia, 2008

3 Marshall, 1987

4 Kari, 2021

5 USA Facts, 2023

6 Centers for Disease Control and Prevention, 2023

7 Child and Teen Firearm Mortality in the U.S. and Peer Countries, 2023

8 Harvard School of Public Health

9 Agency for Healthcare Research and Quality, n.d.

References

Agency for Healthcare Research and Quality. (n.d.). GUN VIOLENCE BY THE NUMBERS. Retrieved from BradyUnited: https://www.bradyunited.org/key-statistics#:~:text=Daily%20Gun%20Violence%20Impacting%20People%20of%20All%20Ages,are%20shot%20and%20killed%20210%20survive%20gunshot%20injuries

Centers for Disease Control and Prevention. (2023). Firearm Deaths in the US: Statistics and Trends. Retrieved from USAA Facts: https://usafacts.org/data/topics/security-safety/crime-and-justice/firearms/firearm-deaths/

Child and Teen Firearm Mortality in the U.S. and Peer Countries. (2023, March 29). Retrieved from Global Health policy: https://www.kff.org/global-health-policy/issue-brief/child-and-teen-firearm-mortality-in-the-u-s-and-peer-countries/

Congressional Research Service. (2022, 10 12). Second Amendment. Retrieved from Constitution of the United States: Analysis and Interpretation: https://constitution.congress.gov/constitution/amendment-2/#amendment-2

English, W. (2021, July 14). 2021 National Firearms Survey. Georgetown University, Georgetown McDonough School of Business . Washington DC: Georgetown McDonough School of Business . Retrieved 4 15, 2023, from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3887145

Harvard School of Public Health. (n.d.). Gun Threats and Self-Defense Gun Use; Harvard Injury Control Research Center. Retrieved from T. H. Chan Harvard School of Public Health: https://www.hsph.harvard.edu/hicrc/firearms-research/gun-threats-and-self-defense-gun-use-2/

Kari, S. (2021, July 14). The ‘Strange’ Syntax of the Second Amendment. Retrieved from Duke Center for Firearms Law: https://firearmslaw.duke.edu/2021/07/the-strange-syntax-of-the-second-amendment/

Marshall, T. (1987). The Constitution’s Bicentennial: Commemorating the Wrong Document? Vanderbilt Law Review, 40(6 – November 1987), 1337-1342. Retrieved April 15, 2023, from https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2686&context=vlr

National Center for Health Statistics . (2021, July 26). Deaths and Mortality, 2019; National Center for Health Statistics. Retrieved from Centers for Disease Control and Prevention : https://www.cdc.gov/nchs/fastats/deaths.htm

Past Summary ledgers. (2023, April 19). Retrieved from Gun Violence Archive: https://www.gunviolencearchive.org/past-tolls

Scalia, A. (2008, June 26). District of Columbia v. Heller, 554 U.S. 5780 (2008). Retrieved from Caselaw Access Project: https://cite.case.law/us/554/570/?full_case=true&format=html#p572

USA Facts. (2023, April 18). Firearm Deaths in the US: Statistics and Trends. Retrieved from USA Facts.org: https://usafacts.org/data/topics/security-safety/crime-and-justice/firearms/firearm-deaths/