Specifically, my friend was annoyed that Gary spent valuable class time arguing that the 2nd Amendment protects the citizen’s right to own guns but not to own bullets. With a straight face, his professor had argued that the key to reducing gun violence in America is to enact a legislative ban on the manufacture, distribution, and sale of bullets. This, he thought, would actually pass constitutional muster.Gary’s proposed bullet ban makes him sound a lot like the segregationists I knew when I was a child in Mississippi in the 1960s. They didn’t like “colored people” and didn’t want them to vote. But they could not actually keep them from voting so they found ways to construct laws that would have the same effect without actually banning blacks from the voting booths. After all, a law that required literacy among voters was really just a way to promote public education, which, after all, is in the best interests of all, regardless of race.
As a professor in a Department of Sociology and Criminal Justice, Gary should have some familiarity with the case of Griffin v. California (1965). After the case of Malloy v. Hogan (1964), all states were required under the Fourteenth Amendment to extend the Fifth Amendment “self-incrimination” privilege to defendants in criminal cases. The case also extended the privilege to witnesses who were not defendants, even in pretrial proceedings such as preliminary hearings.
However, since prosecutors did not like this particular constitutional right, they tried to subvert it indirectly by asserting, for example, that the defendant’s choice to “take the fifth” was itself unequivocal evidence of guilt. The assertion, generally made during the prosecutor’s closing argument, was sometimes the last thing the jury heard before the onset of the process of deliberation. But, thanks to Griffin v. California, this act of allowing a government agent (a prosecutor) to indirectly subvert a constitutional right –simply because he found it distasteful (and/or dangerous) – was ruled unconstitutional by the end of 1965.