The Constitution does not condone senseless violence. Our Courts should make that clear. Congress does not.

Our country is on the edge of an internal revolution.

The immediate problem is the massive polarization in this country regarding firearms. We’ve witnessed the overwhelming tragedy of children killed at Sandy Hook Elementary and in Uvalde, Texas; the killing of African American shoppers in Buffalo, plus countless other mass shootings. Each murderer used a common device: a gun, usually semi-automatic, that spewed out bullets never considered when our forefathers wrote “arms” into the Second Amendment. Despite our collective grief over recent heartbreaking events, it is clear that no legislation will be passed to resolve the problem.

The Founders did not conceive of this carnage when they wrote the Constitution and they would not have tolerated this madness now.

According to former U.S. Supreme Court Justice John Paul Stevens, the Second Amendment was drafted from a concern that a national standing army might pose a threat to the security of the separate states. Justice Stevens believes that concern is a relic of the 18th century.

The Second Amendment provides that “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.”

For decades no judge, federal or state, expressed any doubt as to the limited coverage of the Second Amendment consistent with its written terms and purpose to preserve a “well-regulated militia.” Even the major 2008 Supreme Court case relied on by gun rights advocates as codifying their right to bear arms, District of Columbia v. Heller, protected only a civilian’s right to keep a handgun at home for the purpose of self-defense.

In recent years, gun manufacturers launched a widespread, profit-centered marketing campaign using the N.R.A. as a vehicle, claiming that any federal regulation of firearms whatsoever violated Second Amendment rights and fundamental freedom.

There is no conceivable way the proliferation and use of guns in this country, or the N.R.A.’s spin on Constitutional interpretation, can be squared with the actual text, meaning or purpose of the Second Amendment.

Former Chief Justice Warren Burger, a lifelong conservative Republican and Republican appointee, has publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

What is clear from its plain text is actually what the Founders omitted from the Second Amendment: an unadulterated right to purchase assault firearms at retail stores without question, to murder children at schools, the elderly at grocery stores, or churchgoers in worship.

Firearms are the number one leading cause of death for American children and teens in our country right now. (Everytown Research, www. everytownresearch.org; CDC Underlying Cause of Death, Ages 1-19; citing New England Journal of Medicine “Current Causes of Death in Children and Adolescents in the United States” May 19, 2022, Goldstick, J. E., Cunningham, R. M., Carter, P).

America is the only country with this problem. According to CNN, since 2009 the U.S. has had 288 school shootings. That number will have changed by the time this article is published. Each of the other G-7 countries have had either none, or about two mass shooting events over the same time period.

Obviously the mental health of the assailants is relevant. But if the 18-year old shooter in Uvalde would have been unable to walk into a retail store to purchase two semi-automatic assault rifles, the outcome would almost certainly have been different. The other G-7 countries face similar struggles with mental health, but none of them have the same gun violence.

There are currently a pair of House-passed measures in Congress that would expand criminal background checks to would-be gun buyers, and would give the F.B.I. more time to investigate those buyers flagged by the current background check system. There are 50 senators blocking the bills. On May 26, the New York Times reportedly called each of them to ask for their views on the proposed legislation. The majority either opposed or declined to take a position, citing concerns about infringing on the rights of gun-owners. One senator responded: “I’m a Second Amendment person, period.” But the real answer is the solicited money from gun manufacturers and N.R.A members.

The Department of Justice recently submitted to the Federal Register a Final Rule designed to curb the proliferation of so-called “ghost guns” – a term coined for firearms without serial numbers, which are therefore untraceable. Ghost guns can be privately assembled or 3-D printed by anyone. In 2021, about 20,000 suspected ghost guns were recovered by law enforcement in criminal investigations: a tenfold increase from 2016. The Final Rule simply modernizes the definition of a firearm, subjecting ghost guns to similar regulations.

On a state level, California has relatively strict gun regulations, comparably speaking. Among them, a 10-day waiting period for gun purchases; required background checks; restrictions on assault-style weapons and a 10-bullet ammunition limit.

The two new proposed state bills are notable. One aims to tackle the untraceability of “ghost guns.” The second would allow for civil suit damages against gun manufacturers and distributors for “public nuisance” if they fail to take “reasonable precautions” in making and selling their weapons.

There are municipal efforts too, like the ordinance recently passed in the City of San Jose. It requires gunowners to purchase insurance for negligent gun-related harm, payment of a fee to a non-profit gun safety organization, domestic violence prevention and suicide awareness programs. San Jose is currently defending the ordinance from multiple lawsuits brought by national gun rights organizations.

Our Founders did not draft the Constitution with the mindset that it would be interpreted to permit children to be shot in schools. Honoring the Second Amendment text requires the third branch of government – the courts – to allow litigation to interpret the Constitution. The legal profession has to take on the role that Congress refuses to confront. Waiting until the next tragedy should not be an option.

Joseph Cotchett is the founding partner and Tamarah Prevost is a senior partner at Cotchett, Pitre & McCarthy, LLP in Burlingame. Both have handled cases involving firearms