Tag Archives: Bill of Rights

Madison’s Amendment

In an interesting article about the original 20 items on James Madison’s Bill of Rights — reduced to 12 after considerable debate in the Continental Congress and later to 10 during the ratification process —  it is made fairly clear what the man was thinking when he wrote those amendments.

We know that the major concern of those who were debating the Constitution was the issue of ratification. How to write the Constitution in such a way that the required number of states would agree to it? Originally it mentioned the abolition of slavery, but that had to be cut to assure that the Southern states would climb on board. A number of those items also had to be cut from Madison’s 20 “Rights,” though they were eventually reworked into later amendments — such things, for example, as restricting Federal judicial powers. Another was added as late as 1992. Compromise was necessary in a new nation where individual rights, and the rights of the states themselves, must be guaranteed. The original Second Amendment reads as follows:

James Madison

James Madison

 

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person,” said Madison.

The final clause was dropped, sad to say. But, like that clause, the remaining part of the statement makes it abundantly clear that the major concern in this amendment is the right of the militia to bear arms, since the right of “the people” is predicated on the claim that “a well armed and well regulated militia” is necessary to guarantee that the country remain free. And the reference to “military service” in the omitted clause also makes it clear that the militia was of major concern — for reasons of self-defense.

It is a wonder in these days of heated debate over the need for some sort of gun control to limit the sales of automatic weapons to possible terrorists in this country that few bother to recall what the founders were most concerned about when they agreed to the Second Amendment. Much is said about our “Constitutional Right” to bear arms, but nothing whatever is said about this so-called right being predicated on the maintenance of a militia. With the disappearance of the militia the right to bear arms also disappears. At best, one could argue that the National Guard has such a right. But not every Tom, Dick, and Sally — and certainly not those who are not of sound mind.

Note: After writing this post I was pleased to read an article quoting various Constitutional lawyers on this topic that support what I have said here:

For almost 200 years after it was adopted, the Second Amendment was interpreted to protect the right for militias to bear arms, but not individuals. In 1939, the Supreme Court ruled in United States v. Miller that restricting access to shotguns or machine guns by citizens outside the military was permissible. . .  .

[Harvard Law Professor Laurence Tribe added that] the Second Amendment does not stand in the way of gun legislation to make the country safer.

“The largest misconception is that the Second Amendment justifies — or ever has justified — our nation’s abysmal record in protecting innocent people from avoidable gun violence, . . . The Second Amendment and the Constitution as a whole are abused by those who treat them as a sick suicide pact.”

So while there is a legitimate political debate to be had about the merits of gun control, Tribe says, conservatives are wrong to make it a constitutional issue.

This, of course, does not imply that the debate over gun control will end, though it should quiet those who argue that carrying automatic weapons is a “right” guaranteed by the Second Amendment. However, it most assuredly will not.

 

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Ignorance and Fear

Socrates famously said the ignorance brings about evil in the world. He put it otherwise. He said knowledge invariably leads to goodness. I stress the obverse, but in either form he was a bit off the mark, it seems to me. I would say that ignorance leads to fear which quite often leads to violence. It is not ignorance, per se, that leads to what Socrates would call “evil.” It leads there through fear. And we are learning all we need to know about fear these days, thanks to the media, prodded by the frenzied right-wing, who have discovered that fear is an excellent way to control the population, to reject any attempts to control the sale of guns, and get such things as increased defense spending in Congress.

In a previous blog I quoted the Hanlon’s Razor that tells us “Never attribute to malice what can be adequately explained by stupidity.” This is a profound adage, if you think about it. It is indeed stupidity that leads to the fear that, in turn, leads to violence. Think about it. Imagine you are in a dark house alone and you hear something drop in the kitchen. You immediately are afraid and you reach for a poker (if you are near the fireplace) or a make-shift weapon of some kind. Then you find out it was the cat who knocked over the sugar bowl and you breathe easier. Your heart stops racing and you calm down. But think about the direct and immediate connection between your ignorance of the cause of the noise and the fear you feel as a direct result of your ignorance. And one can expand on these examples endlessly and continue to imagine what might happen if you had a real weapon, say a hand gun or an automatic rifle in the drawer next to you. You might have shot the poor cat! Or your nephew. Or a neighbor who was watching television in his living room next door. Absurd, you say? Not really. It simply explains how so many violent acts are committed each day by frightened people who shoot first and think later. I say again, ignorance leads to fear which leads to violence. Not always, to be sure. But often.

And when we consider the widespread ignorance in this country fed by the fear-mongers who feed off it, we might want to pause and reflect. Consider, for example, the self-appointed guardians of our southern boundaries who are armed and ready to protect us from the hated immigrants, children though they be, who (they think) will their jobs away and cripple our economy. I have blogged about this, as I have about their conviction that theirs is a right guaranteed by the Constitution to carry those weapons and be ever-prepared to use them — even though (as I have noted in past blogs) the Bill of Rights guarantees the militia the right to carry weapons, not frightened and stupid thugs. But because many choose to read the Constitution through glasses tinted by fear and suspicion, their right is insisted upon even though it is a fiction.

As F.D.R. said long ago: we have nothing to fear but fear itself. Indeed. And its first cousin, stupidity.

One Disturbed Texan

You really have to admire Steve Stockman’s enthusiasm even though you might want to question his knowledge of American history and the Constitution. Steve is a recently elected Republican member of the House of Representatives from the great state of Texas — you remember Texas? It wanted to secede from the Union after Barack Obama was reelected to the Presidency. The White House was required to respond to the petition and they said “No.” Pity! In any event now Steve wants to impeach the President because he has suggested that he might want to evoke executive privilege to curb violence in this country.

The story begins with Steve’s rant against the president’s outrageous suggestion:

“I will seek to thwart this action by any means necessary, including but not limited to eliminating funding for implementation, defunding the White House, and even filing articles of impeachment,” Stockman pledged. “The president’s actions are an existential threat to this nation. The right of the people to keep and bear arms is what has kept this nation free and secure for over 200 years. The very purpose of the Second Amendment is to stop the government from disallowing people the means to defend themselves against tyranny. Any proposal to abuse executive power and infringe upon gun rights must be repelled with the stiffest legislative force possible.”

Let’s take this slowly, pausing for breath — which is a pause Mr. Stockman apparently forgot to take. The President’s actions are said to be an “existential threat to this nation.” What, precisely, does that mean? It sounds like it might have come from Sartre or one of the other beat thinkers in the 1950s, but I doubt that Steve ever read those folks. He apparently hasn’t read his history either. In any event, I gather Steve thinks the country is endangered by the President’s threat to evoke executive privilege. He must be unaware that whatever steps President Obama takes to curb the violence in this country will be very small indeed, since it will require legislation to take giant steps and the Congress is the legislative body in this country — and not likely to do much of anything about gun control.

It’s not at all clear from what history I have read that the Second Amendment — which was adopted in 1791, fifteen years after the Declaration of Independence was adopted and almost ten years after the end of the revolutionary war — has been instrumental in “keeping this nation free for nearly 200 years.” I would have thought it was the Army, Navy, and Marines that did that, fighting wars on foreign soil with the loss of thousands of American lives, and not the militia at home with their muskets as guaranteed by the Bill of Rights.

It is true that the Founders were concerned about tyranny, but they saw that danger coming from across the pond, not from the head of our government here on this continent. And it is not clear how this president, or any president for that matter, could become a tyrant given the checks and balances that have been written into the Constitution. In fact, if you look at the list of nineteen things the president might do to curb violence in this country after the massacre at Sandy Hook, they seem fairly innocuous — and largely ineffective I dare say. And the President hasn’t even said he would take any of those steps. Steve seems to be overreacting.

One of the few steps the NRA and its Republican supporters are in favor of in the way of reducing violence in this country is better mental health coverage. This is an excellent idea and it is certainly something that people like Representative Stockman will want to take advantage of at their earliest convenience.

Proactive Court

President Obama is attempting to explain away a comment he made regarding the Supreme Court’s upcoming decision concerning Health Care. It is generally expected that the Court will take a pro-active stand on the issue of mandating health care, one of the more controversial features of the new bill. In anticipation of that decision, due in June, the President recently said: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law.” Please note that the issue is not whether in Obama’s view the Court has the right to overturn laws that are deemed unconstitutional, but rather that they do not have the right to legislate (in effect) by overturning laws that are in fact in compliance with the Constitution. As I read the Constitution, Obama is correct.

Obama’s spokesman recently met with the press corps and spent several heated minutes trying to explain that the President wasn’t telling the court what to do, that he understood as well as anyone that the court’s job is to interpret law and determine whether laws are in compliance with the Constitution, But the President is confident that this law is in compliance and seemed to be expressing his frustration over what he anticipates the decision to be — to wit, a ruling against the mandate. It might have been wise for him to remain silent at this point.

In any event, earlier in the week, former President Clinton spoke out in favor of the law and quite candidly said that any attempt by the court to overturn the law would be politically rather than judicially motivated. As he noted, “Nobody knows how well it’s [the mandate] going to work, because it’s just now being implemented. But I don’t think it was unconstitutional in any way, shape or form. Even in the 1790s, George Washington mandated that shipping companies insure their employees, he signed a bill mandating that able-bodied citizens have firearms in their home because they thought the British were coming again, John Adams signed a bill to mandate that individual seamen have hospitalization insurance. To me, it’s hard to take the constitutional argument seriously, so I think there’s a little more politics.” Washington’s mandating the carrying of firearms came as a result of the unwillingness of the Quakers to bear arms in spite of the fact that the Bill of Rights guaranteed them that right. Those who holler loudest about the “right to bear arms” ignore how closely tied that right was to the felt necessity of an armed population in a country without a standing army.

In any event, a mandate is not a new thing, going back as it does to George Washington. But, as Clinton noted in his remarks, in appearing before the Court the government failed to point out relevant precedents in the law that would allow one to see that the Health Care mandate is not in any way unconstitutional. This may turn out to have been a capital blunder, if it is true. But as it happens, the court seems to be blatantly political these days, insisting in both Bush vs. Gore in 2000 and more recently in Citizens United that their role is to force their political ideology on the commonwealth rather than seek to determine on a case by case basis whether the legislative body is doing its work properly, as determined by the Constitution. It does appear we are at a most interesting period in our history and can anticipate a new chapter in the workings of the American government, though I confess it’s not one I am eager to read.

Gun Control

One of the truly hot topics in America for years now is the issue of gun control. I never really understood why the topic produces so much heat. After all, it’s not about gun elimination, it’s about gun control at a time when we desperately need a bit of restraint, as recent events have shown. The favorite mantra of the N.R.A. and those who want no controls on the use of guns is the chant “guns don’t kill people, people kill people.” This is one of those half-truths that saturates our thinking and keeps us away from the whole truth — so far as we can ever grasp that.

The second amendment to the Constitution was written in 1789 and adopted in 1791 and it reads in its entirety “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 was written by James Madison, and please note the careful wording. The statement begins with what logicians call the antecedent “A well-regulated Militia, being necessary to the security of a free State….” The remainder of the statement is the consequent. In effect, it reads “Because we need an armed militia, we must protect the right to bear arms.” The two sections of the statement must be taken together.

The Bill of Rights was passed as a rider after the Constitution was adopted in order to persuade still reluctant individuals to come on board. As Madison said at the time, “I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.” Initially it was felt that the Bill was unnecessary because no civilized country should need to spell out the rights of the citizens. Further, if they were spelled out there might be others, not mentioned, that would therefore be ignored. But these arguments were eventually dismissed and the Bill became part of the Constitution of these United States. At that time, there was considerable concern over an armed force on the continent — given the fact that the Colonies had been an occupied country for many years. In a word, the Founders didn’t trust armies. But, as was the case during the recent Revolution, men with weapons in their homes (muskets, of course) who could be called upon to defend their country was the acceptable alternative.

Thus, the reason the second amendment was adopted was to persuade those who were still reluctant to accept a constitution they thought would deprive them of states’ rights, but with the understanding that none of those supporting the document wanted a standing army. The “right to bear arms” was specified because it was believed that the country was better off being defended by men who were, in effect, defending their homes.

So much has changed since that time, needless to say. We now have one of the largest armed forces on earth and the need for an armed Militia no longer exists. Further, the Founders never envisioned hand guns and automatic weapons that could kill large numbers of people in a matter of seconds. It is true that someone must be holding a weapon for it to kill someone else (or the holder himself). But it is also the case that when these weapons are so deadly and so many people might die in such a short time, the likelihood increases that someone will die when the guns are fired. It’s a matter of simple probabilities. In a word, if there were no guns, no one could be killed by the accidental or intentional discharge of a gun. So, people kill people, but with fewer guns fewer would die or be maimed.

It’s impossible to read the minds of those who wrote the Constitution, though reading the Federalist Papers takes us back to the period and lets us see what sorts of things those people were thinking at a time when states’ rights were the central issue. One thing comes clear, and that is that these people lived in much simpler times and though they were just like us in so many ways, their technology was in kindergarten compared with ours. It is hard to imagine that they would have written and adopted an amendment like the second amendment given today’s conditions — the large stranding army and the advanced weaponry.

In any event, when the N.R.A. or others of their ilk defend the “right to bear arms,” they should also at the same time argue for the dismantling of the standing army. The two conditions go hand-in-hand.