There’s no question the Legislature will begin the 2024 session in a tough place.
The majority in both chambers have longstanding disagreements with their fellow Democrat, Gov. Janet Mills, over a number of issues, including firearms safety.
The Lewiston massacre on Oct. 25 demands a state response, but what that response should be is uncertain, and will be further shaped by what can actually become law. To their credit, both Mills and legislative leaders have proceeded cautiously.
One point they should be able to agree on is that the U.S. Supreme Court’s confusing edicts about firearms shouldn’t influence the laws they write.
Only in the grievous Dobbs decision on abortion has the court acted so rashly and so out of keeping with the history and traditions of the Constitution, and the common law.
Clarence Thomas’s majority opinion in the 2022 Bruen decision hasn’t elicited the same outrage as Samuel Alito’s historical misstatements in Dobbs, yet it’s equally unfortunate.
Thomas’s poor grasp of precedent and tradition is captured in Bruen’s most noteworthy assertion: “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
This “unqualified command” exists only in Thomas’s mind, not in any convincing reading of the Constitution.
For more than 200 years, federal courts understood the Second Amendment to buttress the common defense – not individual ownership of firearms. That changed with the late Justice Antonin Scalia’s opinion in the Heller case in 2008 striking down the District of Columbia’s handgun ban.
Banning guns of any sort has become contested in a way it never was until the 21st century.
Gun ownership was once defended in connection with hunting – certainly the case in Maine – and not primarily owning a gun for “protection.”
Yet the connection with guns and “feeling safe” has been pursued with such extraordinary avidity it’s been seriously proposed, and even legislated in some states, that the “solution” to elementary school students being massacred is to arm and train their teachers.
So, with an increasing conservative tilt, the court reached the point in 2008 where Scalia – more respected than Thomas or Alito – decided a comprehensive, not especially effective handgun ban in the nation’s capital had to go.
To do so he could not call on precedent. So, he made up a new constitutional principle by ignoring the Second Amendment’s militia clause and focusing solely on “keep and bear arms.”
At the time, it didn’t seem monumental. Few states or cities tried to ban handguns.
Then came Bruen, and, constitutionally, all hell has broken loose. Federal appeals courts have struck down all manner of firearms laws in response.
It turns out the “nation’s historical traditions,” as twisted by the conservative majority, isn’t a helpful guide.
Recognizing the chaos, the Supreme Court itself seems ready to limit the damage. In the Rahimi case currently before the court, oral arguments showed a majority, perhaps even a unanimous court, inclined to uphold laws removing firearms following domestic violence offenses.
How the court proceeds afterward is unknowable. Unlike the D.C. handgun ban, New York state’s concealed weapons permit system struck down in Bruen was similar to laws in most states – including Maine at one time.
Maine’s permit system was repealed in 2015 when Democrats, who’d pushed for a uniform system run by State Police, abandoned the effort and agreed to scuttle the entire law.
The only real advice one can offer Maine leaders, of both parties and all three branches of government – a former chief justice is leading the Lewiston investigation – is to do what’s right for Maine, without worrying about what might happen in court.
We’ve traveled a long way from when federal legislation limited access to firearms, as in 1968 after the assassinations of a president, his brother, and the 20th century’s greatest civil rights leader.
Much of that journey has been in the wrong direction.
Changing course won’t happen through any single action, or any position taken by an elected leader, though the declaration of conscience by Congressman Jared Golden could help point the way.
Lyndon Johnson, whose great legacy in domestic legislation was forever tarnished by the Vietnam War, isn’t the first Democrat who comes to mind when the word “statesman” is mentioned.
Yet Johnson had one undeniable insight that could serve Maine well.
In his earlier days as Senate leader, cooperating extensively with Republican President Dwight Eisenhower, Johnson often led with a verse from Isaiah: “Come, let us reason together.”
Responding to the Lewiston tragedies will be the work of years, but reasoning together is an excellent place to start.
Douglas Rooks has been a Maine editor, columnist and reporter since 1984. His new book, “Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888-1910,” is available in bookstores and from Maine Authors Publishing. He welcomes comment at drooks@tds.net
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