The Counterfeit Second Amendment

The Counterfeit Second Amendment:

Another case exposes the escalating harm to Americans

from the gun industry’s campaign to rewrite the Second Amendment

By Thomas Coffin

Boland v Bonta is a federal firearms case in California which should give everyone a clear sign of the increasing danger to each and every one of us from the NRA and the gun industry; their strategic bypass of the constitutional amendment process with a re-reading of the Second Amendment has resulted in the selling of that re-reading to its willing conservative bloc on the Supreme Court and well as lower federal courts. Thus, two centuries of jurisprudence have been thrown off the precedent cliff, to be replaced by a free-falling, no holds barred, open market for guns, including advanced military firearms developed for maximum lethality against their human targets.

Of course, such a seismic change in the legal landscape would never have happened through the formal amendment mechanism in the Constitution because it would have met formidable opposition. Seminars and articles by funded, friendly “researchers”, however, were enough to capture five votes where it counted most­—the Supreme Court—and here we are, being targeted by mass shooters at least two times per day, every day, seemingly for the rest of our lives. If the reader wishes to catch up with prior articles related to gun legislation, here are links to bring you up to date: How the NRA and the Arms Industry Strategically Changed Second Amendment Jurisprudence to Make America a Killing Zone; The Insanity of Our Military’s Alliance With Our Deadliest Threat—The Gun Industry; And You Thought AR-15s Were Deadly.

When you combine the mix of firearms jurisprudence with the textual approach of “originalism” (which I discuss in Misogyny On Display in Court Rulings), it becomes alarming how dangerous are the proliferation of firearms combined with the lack of regulation of such—all due to the present day jurisprudence cooked up by the gun industry. The 5th Circuit Court of Appeals, for example, refused on Second Amendment grounds to enforce legislation prohibiting a domestic violence abuser from possessing firearms, reasoning that the abuser had a right to possess them based on the Amendment even though he had a sordid history of gun violence—including a series of shooting at an occupied residence and three vehicles, among which was a  police officer’s car.

The Boland v Bonta case is a challenge to California’s Unsafe Handgun Act which involves state’s efforts to regulate firearms by requiring several safety features in their manufacturing process: a chamber load indicator (CLI) that shows a handgun is loaded (recall the incident on a Hollywood set where an actor accidentally shot and killed a production employee, not realizing the gun was loaded), a magazine disconnect mechanism (MDM) which prevents a gun from being fired if the magazine is not inserted correctly, and a microstamping capability, which essentially stamps the identity of the gun’s make, model, and serial number onto its shell casing when it is fired, and thus creates forensic evidence in its wake. 

Enter the US District Court for the Central District of California, which, on March 20, 2023, issued a preliminary injunction in the case temporarily preventing California from enforcing these requirements on the ground that such violate the Second Amendment by restricting the ability of Californians from acquiring state-of-the-art-handguns to protect themselves. The reader can and should resort to Judge Cormac Carney’s order itself for its full, grim content.

The plaintiffs in the Boland case, four individuals (all men) and the California Rifle and Pistol Association, allege that California’s Unsafe Handgun Act is unconstitutional under Bruen, the 2022 Supreme Court case which limited states’ ability to regulate guns. Judge Carney’s preliminary injunction agrees that the “CLI, MDM and the microstamping requirements are not consistent with this Nation’s historical tradition of firearm regulation.” (If you are interested in seeing who filed the Boland case, check out the California Rifle and Pistol Association and its Litigation Program and one of the plaintiffs, Reno May.

Among the other assertions found in the order is that civilians have a “right” to state-of-the-art firearms. That suggests, taken at face value, military grade firearms. I have previously written about the introduction of AR-15s into the commercial market (see link above), and I have called on the president to issue an executive order to the armed forces to protect its technology from being disseminated into the private sector. War weaponry is designed for maximum lethality in combat against the enemy. Americans are not at war with fellow Americans. This grade of destructive firepower should be kept under guard in military arsenals, not placed in the hands of unregulated or untrained private parties. To opine that civilians have a constitutional right to military grade firearms only highlights the grotesque distortion of the original (and never amended) actual version of the second amendment.

In reading Judge Carney’s conclusion, however, the reader comes away with the impression that we indeed are at war against each other and must keep up with the arms race if we want to remain alive and above the ground. He laments “the ubiquity of guns and our country’s high level of gun violence” and cites examples of people who “live in high crime neighborhoods” or who “must traverse dark and dangerous streets to reach their homes after work or other evening activities” (quoting the concurring opinion of Justice Alito in the Bruen decision.) If that is indeed the sad state of life today in our nation, the most likely cause is the flood of modern firearms into the private market by a gun industry that successfully and unfortunately overturned 200 years of “regulated” bearing of arms to “unregulated” bearing of arms by street gangs, criminals, thugs, and political terrorists being exhorted by a former president to wreak death and destruction on the nation’s Justice system.

Frankly, it doesn’t take Sherlock Holmes to figure out who profits from the “high level of gun violence” and who on the other hand, pays the terrible price.

Finally, the concept of California’s regulations are commendable: the safety measures are comparable to those in the car industry, with the evolution of seat belts, airbags, head rests, collision absorbers, etc. Such make cars more expensive, but the added safety is well worth it. And features like microstamping can be likened to fingerprints and DNA forensic techniques that aid in identifying criminals and serving the cause of justice. If a spent shell can tell detectives where the gun was sold and who was the purchaser, that is well worth the extra cost to the manufacturer and the price to the buyer.  The second amendment is not a license to kill and get away with it. At least, not the genuine second amendment. The counterfeit version is a cancer on our nation and its democracy.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020 and at Politics and Pie in October, 2022.  He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.  The Blackberry Pie Society is pleased to include a collection of his essays on our website.  We will post them as they become available.

posted 3.30.2023