The Second Amendment at a Crossroad With Adam Winkler

Professor Adam Winkler is pictured.

Professor Adam Winkler is pictured here. 

By Vanessa Igras, Staff Writer

On Thursday, Nov. 4, the Eisenhower Institute’s Fielding Center, alongside Phi Beta Kappa and the EPACC hosted UCLA Professor of Law, Adam Winkler, for a discussion surrounding the current state of the Second Amendment. Gettysburg College students gathered in the Mara Auditorium on Thursday night to hear Professor Winkler, a specialist in constitutional law, lead this timely conversation. 

Although the Second Amendment proved to be a controversial topic in the past decade, the Supreme Court only first significantly delved into interpretations of the Amendment in 2008. In the case of District of Columbia v. Heller, the Supreme Court argued that the Second Amendment is “an individual right.” 

According to Winkler, the Heller case was what led the majority of the debate surrounding the Second Amendment as it “left unclear on what limits of the Amendment could be imposed.” 

The 2008 Heller Case was “hailed as a triumph of originalism.” As Winkler explains, “originalism does not allow the constitution to evolve with circumstances.” In making this case, Winker argues that Justice Scalia, who pushed for originalism during his time as a Supreme Court Justice, was limiting the influence of the Second Amendment. 

Professor Winkler asserts that although Justice Scalia brought in modern concerns to his argument, they did not align with the Justices’ originalist claims. The Second Amendment and its underlying message have changed as our society has progressed and according to Winkler, this change is also seen in technological advances.

Winkler points out that developments in gun technology have great implications for how the Courts interpret “the right to bear arms.” The weapons used at the founding of our nation have vastly evolved to more complex weapons — in acknowledging this, Winkler points out the faults of Justice Scalia’s originalist argument and its inability to be applied to the Second Amendment debate.

Winkler states that such ambiguity provided by the Supreme Court combined with an uptick in mass shootings in the past decade has pushed a successful social movement. Given the energized nature of the moment, Winkler points out that the Court will be getting back into the Second Amendment Debate.

All in all, Winkler concludes that “social movements have changed the perceptions of the Amendment today.” They will continue to have great implications for how the Second Amendment is argued for and against, in and out of the courtroom.

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Author: Gettysburgian Staff

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  1. Justice Amy Coney Barrett Second Amendment dilemma

    In some 225 years neither law professors, academic scholars, teachers, students, lawyers, or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of the Second Amendment of the Constitution. I had taken up that challenge allowing  Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.

    I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “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.”

    Militia, a body of citizens organized for military service.

    If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)

    The 4th Amendment reminds us, “The right of the people to be secure in their persons….”

    The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.

    It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”

    The President was elected on 13 of these references. Of which 11 are Amendments, conditioning a “person,” unlike the Second Amendment, to the role of the President of the United States.

    Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?

    The reason is obvious, the 2nd Amendment is about a “militia”.

    Justice Amy Coney Barrett’s dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero references to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
     
    Leaving Supreme Court Justice Barrett’s judgment in question.

    In the entire U.S. Constitution “militia” is mentioned 5 times. In these references, there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.

    Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..

    And interestingly, the word “shall” appears in the Second Amendment. “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”

    “[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;

    The condition “Infringe” has put a stop as to any thoughts counter regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.” Article 1. All legislative Powers herein granted shall be vested in the Congress of the United States, …”

    Clarifying “..the right of the people to keep and bear arms…”
    People. Human beings making up a group or assembly or linked by a common interest.

    Finally, another reason and need for…. “A well regulated militia, …” exactly, because we fight among ourselves.

    In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.

    William Heino Sr.

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