A long report this morning on NPR talked about the problem with the US Constitution: the "all men are created equal," and related parts.
Last night, I had dinner with long time friends, and the wife asked me what I thought about the SCOTUS' Affirmative Action decision. I told her it was theoretically a good idea, but we weren't ready for it. So we debated about that for a while.
On another topic, there's this:
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, shall not be
infringed.”
If attention is paid to the founding documents of a state, it
is perhaps more so of comparatively newer states. Likewise, there is typically a special
reverence held for the revolutionaries, visionaries, and others who were most
responsible for the founding of the new state.
We in the United States are much closer to our founding documents, and
our “founding fathers,” than our British ancestors are to theirs. We sometimes quote them liberally even
today. We rely on their words and the
spirit behind them. We are of course
limited, in that even those more recent “fathers” are long dead, and we
sometimes have to work to re-imagine what their intentions might have been. It’s also true that the 230 years that
separate us from our founders are a vastly more complex and consequential 230
years, in terms of evolution of society, than perhaps any other such interval
in history. Our concerns today are far
different than they were then, except for the underlying humanistic concerns
that have been on the minds of humans at least for millennia.
Among areas of attention and concern, and of ongoing
discussion and disagreement, are some of the specific concepts elaborated in
our Constitution. One of those points of
debate, for a collection of reasons, is the “Second Amendment.” Of the 27 Amendments to the US Constitution,
the first 10 are unique in that they were proposed very quickly after the
Constitution was adopted, and they were offered by some of the same people who
produced the Constitution itself. They
are given the nickname “Bill of Rights,” and they are held, at least
emotionally, in higher esteem than are the other Amendments.
The second of those first 10 Amendments has often received
very special consideration, and perhaps this attention has become more
prominent and even pressing in recent decades.
The Second Amendment reads “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.”
This is a short Amendment, being comprised of one
sentence. The sentence has two clauses. It is written in late 18th Century
style, and for a very formal purpose.
The same content of the same sentence might equally have been
constructed as “Because the safety and security of a free State necessitates
well-regulated militias, the right of the people to keep and bear arms shall
not be infringed.” Or “The right of the
people to keep and bear arms shall not be infringed, because of the necessity
for well-regulated militias to secure a free State.” Any of these says the same thing. As the late US Supreme Court Justice Antonin
Scalia reminded (we will return at length to the late Justice), the
Constitution, and its Amendments, were intended for everyone. They were composed in language any then
American would have understood. The only
thing future Americans might lack would be a sense of the historical
perspective, but this has been provided for us by the Federalist Papers, which
demonstrate some of the considerations leading to the early decisions about
positions taken and the language used to present them. The Federalist Papers, too, were penned by the
“founding fathers,” most of them by Alexander Hamilton.
In very recent times, the most salient reason for debate over
the Second Amendment has been what many understand as an explosion of gun
violence. There seems a profusion of
guns in society, and what is made to appear as an epidemic of their use, often
for anti-social purposes. Because of
this, there is a population of Americans who react by concluding that if gun
violence is increasingly common, then there should be the further conclusion
that efforts at self-protection should be increased, leading, according to the
logic of it, to the even greater prevalence of privately held guns. Obviously, one way to see this is as a “vicious
cycle,” and some people do see it that way.
Those who make this viciously cyclical argument fundamentally rely on
what they understand the Second Amendment to guarantee as their support.
There is considerable debate here, and fierce disagreement,
about guns in society, and the Second Amendment is treated as a kind of linchpin
in the debate. Gun advocates cite it as
the Original basis upon which the importance of guns, and the right to keep and
bear them, is based. But the Second
Amendment has nothing to do with guns.
It is about the safety and security of communities, and States, in late
18th Century America: in frontier times. The first four words of the Amendment—“A well
regulated militia”—make clear what was the central technique of concern to the
founding fathers. The next two
words—“being necessary”—make further clear how important were the words that
preceded them. And necessary for what?:
“the security of a free State.” This is what the Second Amendment was
about. What comes later, in the
Amendment’s second clause, was incidental and was simply an offer, considering
the resources of the day, as to how to operationalize the concern in the first
clause. No one writing the US
Constitution, or the Amendments, today
would make such a citation. Personally
held firearms—pistols, rifles, or shotguns—would do nothing to provide for the
security of a state or narrower locality, and no one would pretend to recommend
the importance of their availability for such a purpose. And providing for the security of the State
is the purpose of the Second Amendment.
The Amendment states this theory in the clearest and cleanest possible
terms, right from the outset.
History
For a frame of temporal reference, the Federalist Papers were
written in the run-up to the Constitution.
Federalist Paper #29, for example, was written in 1788, and the
Constitution was ratified in 1789. The
Second Amendment was proposed in 1789, and it was ratified in 1791.
The spirit behind the “right” preserved by the Second
Amendment harkens directly and specifically to the historical efforts of some
of the British monarchs to control their subjects, and to the tactic of
disarming them first. The colonists who
formed and incorporated the United States were very much mindful of this kind
of potential abusive power of governments, and they were on their guard to
protect US citizens from such a development on the part of their own government
in the future, as well as to empower them to protect themselves and their
country from outside malevolent force.
Federalist Paper #29, written by Hamilton, gives a relatively
clear sense both of the intention of militias, and of the difficult balancing
act required of them. The purpose of
local militias was very distinctly two-fold.
They were intended both to prevent localities—the “States”—from being
overpowered by the federal government,
and they were intended as an important tool of that government in repelling
outside (the United States) aggression.
The trick was to create a system of local militias that were available
to the nation, for its unified military needs, while preventing the nation
(federal power) from taking command of and dominion over the states and
localities. Again, the founding fathers
had not for an instant stopped thinking about the potential for abuse by a
nation or a government over its own citizens.
The local militias, then, were almost literally on the fence, as both an
aid to the federal government and a check against it.
As the introductory clause of the Second Amendment makes
clear, this—the necessity for militias-- was the over-riding consideration
behind the protection of “the people” to “keep and bear arms.”
It should be acknowledged at this point that we in the United
States, being so comparatively close to our founders, and having the advantage
of a relatively considerable collection of documents reflecting their thinking
about various things, have been able to recognize not only a great and
considerate seriousness on their part, but also a very distinct intelligence
and wisdom in their approach. Many of us
go further, and we attach to that conclusion of intelligence and wisdom, and
the unique perspective they had regarding their initiative, a kind of deep
reverence for them. It would not be
unfair to say that many of us treat them the way religionists treat the authors
(Author?) of their scriptures.
It would therefore be foolish, not to mention breathtakingly
disrespectful, bordering on heretical, to disregard some of their most
carefully constructed and agreed-upon conclusions. The “conservatives” among us are so-called in
large part because of their sometimes almost extreme devotion to what
originally was. It is this that they
seem to want to conserve.
Our founders, the authors of our Constitution, and of the
Bill of Rights, could very simply, for whatever might have been their reasons,
said “the right of the people to keep and bear arms shall not be infringed.” It’s a straightforward statement, and it
communicates, as the late Justice Scalia reminds us, very clearly to anyone who
can read English at even a rudimentary level.
We have no reason to assume that the founding fathers would have been
embarrassed to have made such a “short and sweet” statement, and that they thus
padded it with gratuitous chatter, so it would be longer or more majestic. No, we have no choice at all but to
understand that they chose the first clause, the condition, the explanation, the
premise, carefully and for a reason. And
considering the weight and the moment of the occasion, we should assume their
reason was a very good one. They could
have said no more than “the right of the people to keep and bear Arms, shall
not be infringed.” Or they could have
said “the personal safety of citizens being necessary for security in society,
the right of the people to keep and bear Arms, shall not be infringed.” Or they could have said “the pleasure and
nutritional value of hunting prey being necessary to the fulfillment and
physical health of humans, the right of the people to keep and bear Arms, shall
not be infringed.” The founding fathers
had choices. They made one. We should assume they knew what they were
talking about, and that they had something in mind that was important to them,
and which they concluded would be important to their heirs. What they told us, after careful
deliberation, was that it was a vital guarantee that “the people” have an
uninfringed right to keep and bear arms, because
it was “necessary” that there be local militias. The founding fathers could not have made
themselves clearer.
Hamilton explained this further in his Federalist Paper #29
discussion, exploring the necessity, and the complication, of local militias. He was careful to remind his audience of the
critical importance of the militias being under the direction of the States,
not of the federal government, in important part because those militias might
have to protect the local population from
the federal government.
As such, these local militias were a real fraternity. They were truly of the locality. Hamilton
even discusses the complication of training them, noting that extensive and
more or less frequent training exercises would interfere with their “day jobs,”
as farmers, tradesmen, or professionals.
He settled on the idea that trainings twice a year would be sufficient.
But the trainings were to be according to the regimentation
of the federal government, and Hamilton also foretold, in anticipation of the
“well regulated” requirement, that “It
requires no skill in the science of war to discern that uniformity in the
organization and discipline of the militia would be attended with the most
beneficial effects, whenever they were called into service for the public
defense. It would enable them to discharge the duties of the camp and of the
field with mutual intelligence and concert an advantage of peculiar moment in
the operations of an army; and it would fit them much sooner to acquire the
degree of proficiency in military functions which would be essential to their
usefulness. This desirable uniformity can only be accomplished by confiding the
regulation of the militia to the direction of the national authority. It is,
therefore, with the most evident propriety, that the plan of the convention proposes
to empower the Union to provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed in the service
of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF
THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE
DISCIPLINE PRESCRIBED BY CONGRESS."
Hamilton points out how important it was that the militiamen
be appropriately armed and regimented, and that the “Union” (the federal
government) would determine what arms were most appropriate for the anticipated
tasks, and would provide them.
He further understood and anticipated the necessity that
militiamen be local “brothers,” who were beholden to each other, and devoted
members of their own local communities.
These were people who knew each other, presumably did business together,
likely worshipped together, and could implicitly and completely rely on each
other. It’s unlikely Hamilton invented
the argument to which he responded, when he reassured that the local area, or the
particular state, should have nothing to fear from the militias. It’s likely that this concern was explicitly
raised. He responded as follows: “There
is something so far-fetched and so extravagant in the idea of danger to liberty
from the militia, that one is at a loss whether to treat it with gravity or
with raillery; whether to consider it as a mere trial of skill, like the
paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at
any price; or as the serious offspring of political fanaticism. Where in the
name of common-sense, are our fears to end if we may not trust our sons, our
brothers, our neighbors, our fellow-citizens? What shadow of danger can there
be from men who are daily mingling with the rest of their countrymen and who
participate with them in the same feelings, sentiments, habits and interests?
What reasonable cause of apprehension can be inferred from a power in the Union
to prescribe regulations for the militia, and to command its services when
necessary, while the particular States are to have the SOLE AND EXCLUSIVE
APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a
jealousy of the militia upon any conceivable establishment under the federal
government, the circumstance of the officers being in the appointment of the
States ought at once to extinguish it. There can be no doubt that this
circumstance will always secure to them a preponderating influence over the
militia.”
You’d have to be an
idiot, Hamilton offered, to think you had anything to fear from these men. These are your neighbors, your friends, your
relatives. They’re on your side. They’re not rogues.
So Hamilton thought, and the others of our founding fathers
agreed, that militias were important (they were the only stated reason for the Second Amendment guarantee), that they
could be trusted by the federal government and by the state, and they were such
sons of their localities that they were no threat to them, either. He also reassured that they would be
formally, if not intensively or frequently, trained by the federal government,
and that their guns would be provided to them, so that their “Arms” would be
consistent and reliable. Also, although
gun ownership was very commonplace during the colonial and revolutionary
period, the importance (“necessity!”) of militias meant that there should be no
obstacle to able-bodied men’s possession of suitable guns.
And that is what
was behind 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, shall not be infringed.”
A Well-Regulated Militia
There is no question, and the Second Amendment makes
explicitly clear, that in the late 18th Century, at least in the
frontier of America and its new United States, militias were considered
important. Alexander Hamilton has given
us a reasonable description of the range of important meanings a militia had
then. It was very well known that
nations had their own formal armies, and that local militias were distinct from
those armies. Soldiers were full time
professionals, living their army lives, and local militiamen were part-timers;
people who could be called upon in the need of emergency “military” help. The local militias had their own officers and
directors, and Hamilton very strongly reminded that local control was
critically important.
If early Americans had trouble with Indians, they probably
needed a militia. If the country was at
war on US soil, militias could be called upon to confront the foreign
intruders. But militias might also be
needed if the federal government itself was the intruder, pressing federal
ambitions on states or localities where such ambitions were unwelcome. Militias had to be prepared to go both
ways. And the force that chose which way
they would go was the state government.
It seems likely that there were to be two forces regulating
the militias. Primarily, the organizers
of the militias were the states and localities.
Officers were locals. Militiamen
were certainly locals. But the “Union,”
too, had a regulating responsibility.
Hamilton’s proposal, so as not to interfere too much with the normal
lives of the militiamen, was that the Union not require the attendance of local
militiamen at larger training exercises more often than twice a year. And as the late Justice Scalia recalled,
militias were to be comprised of men, 18-45 years of age.
The Union was also seen as responsible to provide arms for
the militiamen. The idea, clearly, was
to be sure that everyone had good quality and serviceable weapons, and that
trainers could make the same assumptions about capacity regarding anyone’s gun.
The fact is, the concept of local militias no longer has
meaning in this country. We have a
federal armed force, and we have Reserves.
We have a National Guard. There
are some state militias. Sometimes, in
an emergency, local citizens help out, but not to attack anyone, and certainly
not with a weapon. Under conditions of
local “combat,” like when unhappy citizens are rampaging in the Watts section
of Los Angeles, or other similar conditions, we don’t rely on local armed
private citizens. We literally “call in
the National Guard.” If a private
citizen, not “well regulated” by the Union or the locality, offered to get his
or her gun and help out, police would vigorously decline the offer. In reality, we should understand the concept
of local militias as an anachronism.
But despite the seeming conclusion, we have had militias in
this country. Because let’s not forget
the other critically and equally important necessity of militias: to protect
the local jurisdictions and the people from the excesses and excessive
imposition of the federal government. It
might not be hard to envision the need of a local militia for a purpose like
that.
The largest and most organized of the “local” militias was
the Confederate States of America.
Considerably smaller and slightly less organized and local was the Ku
Klux Klan. Other militias included the
Weathermen, maybe the Black Panthers, Randy Weaver’s followers, and Cliven
Bundy’s followers, to name some. All of
these resented and resisted what they saw as the unfair and oppressive
impositions of the federal government on local matters. Although they’re probably not militias per
se, it could be argued that in some areas, those individuals who certainly have
the vigorous encouragement of at least small groups to stop abortions, even by
such means as killing the doctors and staff who perform them, could be carrying
out a militia-related function. It’s not
hard to understand that in reality, the United States—the “Union”—has neither
wanted nor tolerated militias, that it has invariably defeated them, and that
in retrospect, few people today wish any of the militias had succeeded.
These days, gun “rights” advocates talk in terms of what
would amount to militias of one. They
ask that their countrymen imagine that the presence of a gun, openly carried or
concealed, will either have a deterrent effect on would-be criminals, or that
these gun-carrying citizens will be able to use their power to interrupt a
crime in progress. There is little to
suggest that this is other than a fantasy.
It is increasingly common to hear stories of individuals or very small groups
of assailants who shoot crowds of people, killing some or many. That any of these possible victims, or anyone
else other than the assailant, turns out to have a gun, and uses it to interrupt
the crime, is almost unheard-of. In a
recent episode, a man with an assault weapon entered a nightclub and started
shooting. An armed security guard who
was an off-duty policeman was able to do nothing. The event occurred in Florida, which has the
most permissive, or nearly so, laws in the country with respect to bearing
arms. Apparently, no one in the
nightclub, other than the security guard, was armed, although they were welcome
to have been. At some point, the
nightclub put on its facebook page an alert as to what was happening. It took three more hours until a police SWAT
team arrived and eventually killed the perpetrator. But during those three hours, no one who had
access to the facebook page, or who was able to learn of the incident in any
other way, came to the nightclub to intervene.
The perpetrator killed 49 people and sent more injured people to the
hospital, over a span of more than three hours.
And in all this time, with public alerts and the perpetrator himself
having called 911, no militia or even militia-of-one arose. And this is in a state in which almost anyone
can have a gun, and the state’s laws permit using it if the carrier feels in
any way threatened. If that episode
didn’t raise some sort of “militia,” then there is clearly no militia to raise.
Hamilton’s other important point about militias is that they
are “of us,” so to speak. They are of
the people, and of the community. These
are the people we know and can trust, and they’re the ones in whose names we
consequently would not infringe a right to keep and bear arms. If the purpose of ensuring a right to keep
and bear arms is to sustain the value of local militias, which is what Hamilton
and the framers of the Constitution and Bill of Rights very clearly and
explicitly said, then we would certainly insist upon including upstanding
citizens, and not loners, misfits, and people without real and vital ties
within the “community.” But in so many
of the examples of murder and mass murder in this country, it is precisely
people who come to be understood as loners, misfits, rogues, and people with
“mental problems” who are the perpetrators.
These are exactly the people Alexander Hamilton and the framers and
founders envisioned would not have a
“Second Amendment” guarantee, because they are in no way the people who would
be part of the brotherhood then called a militia. Hamilton could not have been clearer about
this, and the other founders voted in agreement with him. “Second Amendment” advocates, however, are
unable to recognize the complete incongruity of their advocacy, and their
resistance to withholding the Second Amendment guarantee from people for whom
it was never intended.
This concern raises further questions as to which people are
not, in a sense, covered by the Second Amendment, and how they could be
identified. Most recently, in what is
the largest mass murder episode in the history of this country, a lone gunman
took a considerable arsenal of weapons to an upper floor of a hotel, and he
shot almost 600 people, killing 58 of them.
No one who knew the man has thus far been able to describe anything
peculiar or questionable about him. In
fact, it may be that the most questionable thing about him is his acquisition
of such an arsenal, all apparently bought legally. These were high powered and high discharging
weapons, modified by the further legal acquisition of appliances to function as
fully automatic weapons, which are illegal in most or all jurisdictions. But because of an atmosphere of
permissiveness about gun ownership in this country, no one gets to ask
questions about why anyone would want such appliances, or so many guns, or any
gun at all. It turns out not to be easy
to identify all of the people who would not qualify for the Second Amendment
protection, and thus should not be allowed to acquire, keep, and bear arms.
It’s not hard to see what the problems are. We don’t have ad hoc militias. Those we have had in the past, even the
recent past, have not been a credit to the country, or even a reasonable
proportion of it, and they have not prevailed in protecting their
constituents. To the extent that we have
anything approaching militias, they are not “well regulated,” except for the
CSA. We are not reassured about having
protectors (that’s what militias are for) who are connected to us and care
about our welfare, and we are not protected from having gun-toting citizens who
are distinctly “anti-social.” When we
have had anything like militias in our time as a country, we have as a union
declared them wrong, faulty, or illegal, and we have defeated them.
Strict interpreters of the Second Amendment, and the theory
of militias, might say that that’s just the problem. It is the purpose
of militias not to be defeated, but
to protect the local jurisdiction or
the state from improper federal intrusion.
And this raises the question of what arms could and should be kept and
borne by those who would man militias.
In this age of modern warfare, if citizens and localities are to be
protected from the federal government and its military resources, the locals
can only have a chance to succeed, as the Second Amendment implies, if they are
equipped as the federal government is equipped.
Today, local militias, if they existed, which they don’t, should have
military rifles, hand grenades, bazookas, flame-throwers, tanks, submarines, fighter
jets, aircraft carriers, and surface-to-air missiles. It’s possible they should have nuclear
weapons. We locals don’t stand a chance
without weaponry like that. But even the
fiercest proponents of the “Second Amendment” don’t advocate for these kinds of
weapons and ordnance, so it’s unclear what, exactly, is their goal. They appear, by not fiercely advocating for
expansion of “gun” rights to include whatever weaponry the federal government
has at its disposal, to have conceded a completely overpowering advantage. If they’re not going to act on behalf of the
federal government or the locality, and they can’t reasonably challenge the
federal government, then they have no mission or meaning, at least if their
“defense” is the Second Amendment.
Modern Day Militias
Militias are an old concept in organized societies. The word militia dates from the late 16th
Century, and the phenomenon is presumably older than that. Militia came to refer to an ad hoc collection
of non-regular army soldiers, called up from the civilian population to
supplement the regular army. Militias
were used in this way in Europe, and the use and implication was continued by
the European colonists of the New World.
The run-up to the American revolutionary war, and the early
parts of that war, included militias, and the attempted use of them was not
without significant complications.
Militia members were only theoretically enthusiastic, and they turned
out not to be reliable. They were not at
all disposed to the task of fighting a sustained war. George Washington and other revolutionary
generals complained greatly about the unreliability of the militias.
But early militias had also been of substantial temporary and
initial use and value to the forming union, and there was reluctance to turning
away from the idea of them. Article 1,
section 8, clause 15 of the Constitution preserved the idea of militias, and it
specified that they were to be used “to execute the laws of the Union, suppress
insurrections, and repel invasions.” The
Militia Act of 1792 specified that militias were to be composed of “each and
every free able-bodied white male citizen of the respective states, resident
herein,” from ages 18 through 44. No one
who was a local citizen, male, free, able-bodied, and white was exempt.
After the war, there was continued ambivalence about
militias. They were still considered
unreliable, and George Washington and others favored at least extensive
training. One use for them in the early
to mid 19th Century was to chase and capture run-away slaves. But even for this purpose, militias were
unruly and unreliable.
The Civil War was fought by an extreme number of Americans;
many more than were in the formal armies of either side. Militias were used extensively, and with the
same complications and problems as had been noted before the war.
In modern times, since the Militia Act of 1903, we have two
kinds of militias. One kind, the
National Guard and the Navy Militia, are national militias. The other kind are state militias. The state militias support the US National
Guard during peace time, and assume the military duties of the individual
states, if the US National Guard is called up externally during wartime. A final designation is the “unorganized
militia,” which is all able-bodied citizens of the states, from age 17 to 44,
and who can be called up for service, if needed.
All of these actual and potential militia members act for the
purposes of the state and the federal government, and they are under the
auspices and control of the governments, local and federal. Except for the unorganized militia, they are
trained, uniformed, and equipped. This
includes whatever guns are considered by the armed forces to be appropriate and
necessary for the tasks.
Tests of the Second Amendment
There have been remarkably few US Supreme Court cases that
hinged on interpretations of the Second Amendment. One of them was United States v Miller 307 US
174 (1939). In 1934, following the
“Valentine’s Day Massacre,” a federal law was passed requiring the registration of certain types of
firearms, including, but not limited to, fully automatic weapons and
short-barreled rifles and shotguns.
Miller, described as a “known bank robber,” and his co-defendant, owned
just such weapons--“sawed-off shotguns,” perhaps de rigueur for bank
robbers—and perhaps understandably, did not want to have to register them. The District Court judge ruled in favor of
Miller’s assertion—that having the otherwise unheard-of burden of registering
his weapon was a violation of his Second Amendment right “to keep and bear Arms.” The federal government appealed and
prevailed, in part because of the argument that the sawed-off shotgun was not a
military weapon, had no military or militia-related application, and was
therefore not protected under the Second Amendment. So we see that in 1939 at the US Supreme Court
level, there was still full respect for the intention of the Second Amendment
and for Alexander Hamilton’s reasoning.
What is somewhat interesting about the Miller case is that the District
Court judge was described as actually having been in favor of the gun-control
law Miller challenged, but also having realized that Miller, who had testified
against confederates, would have to go into hiding and could not appear in DC
to testify, thus surrendering his case.
It is not explained why the District Court judge did not simply rule
against Miller in the first place, though, citing exactly the conclusions of
the Supreme Court.
After the Supreme Court made its decision, some people
asserted that it had erred, in not apparently recognizing that in fact, at that
time, the US armed forces did utilize
the equivalent of sawed-off shotguns.
Had Miller been present to contest this matter before the Court (he was
hiding from the other criminals he ratted out, and he was later found murdered,
presumably by them, even though he retained possession of his sawed-off
shotgun), perhaps he would have known this and introduced it. But even if he had, and even if that argument
would have allowed him to prevail in 1939, we don’t use sawed-off shotguns in
the military any more. Today, he would
have to insist on having a much more extensive arsenal, and not having to
register that, either.
Miller’s argument to the District Court, by the way, was an
interesting and complicated one. He
complained that the requirement that he register is sawed-off shotgun was an
infringement on his “Second Amendment right.”
The requirement technically imposed two infringements on him. One would have been the cost of registering
the gun, a cost that would not have been incurred, if he had wanted to keep and
bear a gun that was perceived as less likely to be found in criminal
hands. If the proposed registration fee
had been exorbitant, let’s say with respect to the cost of the gun, Miller might
have had a good point. The applicable
law did not make it illegal to have a sawed-off shotgun or a machine gun. It only required registration, presumably so
the local government would know who had these weapons, and where the owners
could be found. The other infringement,
which is related to the presumptions about the purpose of registration, is that
people who were considered likely to use a gun to commit a crime (Miller was
certainly considered a very good example of such a person) would then be more
in the official public eye (at least the eye of law enforcement) than would
people who wanted to own weapons considered less concerning, if they had to
register the gun. It reduces your
effectiveness as a criminal, if you have to go public about having the tools to
commit crimes, and let the government know where to find you. But if we recall the suggestions and
reassurances made by Hamilton in his relevant Federalist Paper, these are
exactly the people whose “right” should not
have been protected. They are in no way the fellow citizens from whom
the rest of us would have nothing to fear.
The other important “Second Amendment case” is District of
Columbia v Heller 554 US 570 (2008). The
Firearms Control Regulations Act of 1975,
a local DC law, required personally held firearms effectively to be disabled
for emergency purposes in the home, to reduce the chance of misuse or careless
or impulsive misadventure. Heller argued
that disabling his handgun would prevent its appropriate and intended use,
too--for self-protection--and he resisted the requirement. The DC sued him in the Supreme Court. Heller prevailed, winning what was perceived
by some as a purely partisan majority of Justices, including Anthony Kennedy,
who is often considered a “swing vote.”
The stated grounds for Heller’s victory, written by Justice Scalia, were
the most permissive possible interpretation, and citations, of the Second
Amendment. Scalia, writing for and
joined by the rest of the majority, essentially disregarded the first half of
the Second Amendment, focusing only the second clause, citing the uninfringed
“right of the people to keep and bear Arms.”
What is interesting, among other things, is that Scalia, who opened his
explanation recalling that the Constitution and the Bill of Rights were deliberately
written so simply that any American could easily understand them, then undertook
the most impossible semantic contortions to attempt to make his point. Where Justice John Paul Stevens in his
dissent describes Scalia’s approach as “strained,” it is perhaps more properly
described as impossibly tortured. And
where Stevens offers to consider Scalia’s argument potentially “acceptable
advocacy,” the word “acceptable” is beyond breathtakingly generous. The word “abusive” would have been more
consistent with Scalia’s approach. Scalia
also chided dissenting Justices and their arguments as seeming to require a
“through the looking glass” suspension of reason, all the while seeming himself
implicitly to caution his audience to “ignore the man behind the curtain.”
The late Justice Scalia would be considered, by anyone’s
estimation, to have been an extreme right wing ideologue. Many considered him highly intelligent, and
he was often described as charming and in possession of a delightful sense of
humor. But as a matter of “business,” he
was invariably about as far right as possible.
His discussion in Heller was a
plain and patent demonstration of all of this: his ideology, intellectual
prowess (at least insofar as his ability for rhetorical gymnastics was
concerned), and his attempts to engage, often with a humorous, if equally often
mocking, tone.
Scalia began his discussion by doing some major surgery on
the actual Second Amendment. First, he
bisected it, cleanly severing its first clause from its second, so he was able
to present them as having essentially nothing to do with each other. He then did a cosmetic surgical adjustment,
naming the first clause the “prefatory” one and the second clause the “operative”
one. That is to say, he demoted the
first clause to a status in which it was easy, and efficient, simply to
amputate it, and he promoted the second clause, so that he presented it as all
the Second Amendment really meant to say.
He declared the first clause an irrelevant and inconsequential
appendage, which he then excised and discarded.
As we considered earlier, it would have been inescapably easy for the
founding fathers to have written the Amendment the way Scalia read it, if
that’s what they had meant. Although we
can’t technically ask them what they think (Scalia was able to rest very
comfortably on everyone’s inability to do that, and he cited almost everyone except the founding fathers), they’ve
left us enough, in terms of the Amendment they proposed and ratified, and
Hamilton’s careful and detailed discussion, that we probably don’t need to ask
again.
Scalia turned the Amendment around, proposing to make its
dependent and contingent clause the “operative” one, and the independent
premise clause only superfluous and “prefatory.” It would be a normal reaction to suggest that
Scalia made a mistake, except that his analysis was not honest, and was never
intended to be so. Scalia and the rest
of the majority he represented set out only to affirm their own idiosyncratic
view of the Second Amendment, and they were unconcerned with what shenanigans
they had to commit to do it. The most
glaring example is Scalia’s dismissal of the primacy of militias, which were
the only basis for the part of the
Amendment he liked and wanted to support.
If you just like bread, you can order a BLT, and ask that the bacon,
lettuce, and tomato be held. It misses
the whole point, but you wind up with what you wanted.
Interestingly, Scalia’s having unceremoniously disposed of
the first clause of the Second Amendment, he later cited William Rawle, in
order to make an unrelated point. In
that citation, he quotes Rawle as having referred to the first clause as “the
first [principle],” and the second clause as “a corollary, from the first
position.” Everyone except Scalia seems
to understand how to read a simple sentence.
Scalia was casting desperately about trying to construct some concept of
what the Second Amendment meant, what
he or anyone else he could find would be willing to claim it meant, because he
didn’t want to acknowledge what it said. “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.” It’s not complicated,
and it’s not abstruse. Scalia’s many
other citations, from the Supreme Court and other US Courts, also replaced the
clear language of the Second Amendment with whatever arguers wanted to impose
instead. In Scalia’s case, as in the
cases of the other interpreters he cites, British tradition and laws, and
various state and other laws and interpretations, are offered to suggest that
the clear language of the Second Amendment did not mean what it clearly said. None of these interpreters confronts the fact
of what the Amendment said, and why its authors said what they are subsequently
imagined not to have meant. Had they
meant what Scalia and the others want to say they meant, it would have been
easy for them simply to have said it themselves.
And Scalia became almost single-mindedly preoccupied with the
dissenting opinion presented by now retired Justice John Paul Stevens. In reading Scalia’s opinion, which reflected
the prevailing consensus, and had to do no more than articulate the
considerations that were concluded by the majority to support Heller’s
position, it is not really possible to see Scalia as other than obsessed with
Stevens. Whether the constant references
to Stevens are ad hominem, or the attacks are simply incessant reactions to what
Stevens wrote, Scalia is barely able to make his own point, because he cannot
stop trying to contradict Stevens. Any
endeavor to read Scalia’s explication for what it simply is leads to almost
constant annoyance regarding Scalia’s self-contradictions, ridiculous and
futile attempts to avoid the obvious, and childish semantic manipulations. It seems likely, assuming Scalia was as
intelligent as people say he was, that he knew it, too, that it was as obvious
to him as it is to his readers, and he was frankly embarrassed. The best defense… He had his ideologically-driven
pre-conclusion, he carried it to victory, and it seems he had to have seen his
product for what it was.
In their separate and contrasting arguments, both Scalia and
Stevens generously cite statutes of various of the States of the new
Union. Scalia misrepresents these
citations to suggest that the federal Second Amendment should be understood to
have meant the same thing that the State statutes meant, and for the same
reasons. Stevens properly affirms both
the right granted by some of the States, as well as their clearly stated
reasoning, which had explicitly to do with personal protection and
hunting. He makes clear, however, as it
should have been clear to Scalia, the majority for whom he wrote, and everyone
else, that the federal Second Amendment was written differently from the State
statutes. It was about something
entirely different, and the difference was wholly deliberate. The framers of the Constitution and the Bill
of Rights did not get confused or forgetful.
There were very active and sometimes acrimonious debates among
representatives of the States, regarding what concepts should be included in
the federal Constitution and the Bill of Rights. If the latter had been no more than “me, too”
documents, the authors would have composed them that way. Their colleagues in the Continental Congress
would have made sure they did. Scalia’s
argument would suggest that the framers of the Constitution were either lazy,
stupid, or timid, and there doesn’t seem to be much of a real basis to conclude
any of those possibilities.
Scalia also takes a special and seemingly gratuitous or
otherwise unnecessary opportunity to address points made by Justice Stephen
Breyer. These points must have been made
during verbal arguments, since Justice Breyer did not author the dissenting
opinion. Scalia was essentially just as
dismissive of Breyer as he was of Stevens, but he was a bit less derisive and
venomous.
The question of Heller’s Second Amendment rights might have
been addressed in this hearing, but the majority did him and the country the
disservice of providing him a reverse kangaroo victory. He got his judgment, but the country was
deprived of a fair hearing. It should be
recalled that not only is the Amendment very straightforward and frankly
unambiguous, as is the relevant Federalist Paper, but an earlier Supreme Court
opinion (Miller) was faithful to
it. Stare decisis might well have
provided the only real path to a decision in Heller. If a different Court
wanted to consider the matter from another vantage point, which it had the
authority to do, it squandered that opportunity by producing such a goofy
caricature of supposed judicial reasoning.
It is inescapable, and almost unbearably intriguing, to note
that Heller happened to be a licensed special police officer for the District
of Columbia. For the performance of his
job, he carried a gun in federal office buildings. Had the Court simply dealt with Heller’s
issue as it related to the Second Amendment, it could have pointed out that
Heller was in some ways just the kind of person who might be conscripted into,
or participate in, a militia, except that in 2008, he was 67 years old, thus
not of an age that would still have qualified him for service in a militia,
according to the founding fathers. He
needed a gun for his day job, and he would have needed one for participation in
a militia. But perhaps the majority in Heller realized that Heller’s gun would
not have met the criteria of capacity to confront an invading army, and
certainly not the power of the US government’s war-making resources. It would also not have interfered with
Heller’s ability to do his job, or
his ability to participate in a militia, if his gun was disabled in his home,
but fully enabled as soon as he left his home.
So the majority, as represented by Scalia, chose a distorted, and not
reality-based, affirmation of the Amendment.
In fact, the Court could not have found for Heller simply on the
strength of the Second Amendment, because the Amendment does not support
Heller.
In a non-decision matter, the same US Supreme Court that
ruled in favor of Heller refused to
hear a challenge to statutes from New York and Connecticut. The statutes followed episodes of a particularly
egregious crime committed with “semiautomatic assault weapons,” and each of the
consequently drafted statutes banned such weapons. The challenges—the ones the Court refused to
hear—were brought by gun groups. What is
notable, if not remarkable, about the Court’s (in)action is that if the
dedication was to the Second Amendment, the Court should have heard the
challenge and ruled in favor of the challengers. A modern-day militia, whether it had to
confront foreign invasion or the oppression of the federal government, would
need assault weapons, and much more. The
Court which included Scalia was thus being inconsistent, incoherent, and
self-contradictory in refusing to hear this case. This Court had much more reason to hear this
case and rule in favor of the plaintiffs than it did to hear and uphold Heller,
if the Court’s effort was to protect the common misconception of the Second
Amendment. That was certainly and
explicitly this Court’s intention in Heller.
There is a long enough controversy in this country regarding
the possession of firearms. Never does a
debate on the topic occur without mention of the “Second Amendment.” The Amendment is seen by many, at least by
all gun enthusiasts, as the definitive indicator of the right of citizens to
keep and bear arms. Part of the
Amendment states so very clearly. But as
the Second Amendment and its permission to keep and bear these arms is invoked
without fail in the debate, the clearly stated intention of the Amendment, and
the implications of that clearly stated intention, are never mentioned. It is simply a matter of dishonesty to omit
them.
Conclusion
There might be a fair argument to be made in favor of
possession of firearms by private individuals and civilians. Some people like the security of having a
gun. Some are genuinely concerned about
crime and personal and/or home safety.
Some get entertainment from shooting inanimate objects, like
targets. Some like to kill non-human
animals, for whatever are their reasons.
But the Second Amendment to the United States Constitution has
absolutely nothing to offer them as an argument as to why they should be
allowed by their country and their countrymen to possess these objects. Guns represent extreme danger. That’s what they’re for. They have little use but to hurt and
kill. If gun owners argue that they know
how to use guns so that the guns are not harmful to them themselves, then
they’re welcome to make that argument.
In that case, they have to be right, unlike the woman whose toddler shot
and killed her in a Walmart two years ago, while she was shopping, and her
toddler was playing with her purse, which contained the gun. And they have to provide some guarantees that
the guns with which they are so careful don’t get stolen (one of my friends many years ago had that story to tell), or they themselves
don’t get overpowered by an assailant, so the guns become everyone’s problem,
once they hit the street.
In this country, we carefully regulate and restrict things
that are a lot less dangerous, and have a lot more general application, than
firearms. It’s our way of being careful
for ourselves and for those around us.
If there’s an argument as to why we should be far less careful about
firearms, that argument will have to be based on something other than the
Second Amendment. It simply does not in
any way say what its pseudo-adherents want to claim it means.
The Second Amendment has no modern meaning. It has been meaningless for a very long time
in this country. It is an anachronism,
and it needs to be repealed. The most we
can say for the Second Amendment is that it was a very honest mistake, or that
it had meaning for a while, but that that meaning eventually, or soon enough,
was lost. The Second Amendment is about
something, it’s about something very specific, and it was composed in a way to
make very clear what that was. Its aim
long ago became irrelevant, as the Second Amendment is now irrelevant.
I wrote this paper some years ago, and tried to get it published, but no one would take it. Either it's too long, or it's not good enough.
And, in a related vein, there's this: He spent a career helping others after shootings. This is what he thinks will stop them. (msn.com)
And a million other examples, including racism, sexism, capitalism run rampant, "health care" that's not at all good enough, and way, way too expensive, and loads of other problems. Ask Colin Kaepernick how the "free speech" proposal works out. And read Frederick Douglass' "what to the slave is the fourth of July?"
So, if you're planning to have a "Happy Fourth of July," consider what you're celebrating.
