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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Brilliant Idea!

An acquaintance of mine recently urged one of my best friends in the very small rural town in which I live to get a permit and buy himself a weapon. “Everyone is doing it,” he said, including himself and his daughter. I suppose he feels it necessary to be armed to protect himself against would-be terrorists invading rural Minnesota — or, perhaps marauding Vikings. Whatever. Poor, frightened little man. I feel sorry for him. But his kind is becoming increasingly common in this country, as we all know. And these folks feel they have a “right” to carry a weapon because the Constitution tells them so. As I have noted in previous blogs, this “right” is predicated on the necessity of an armed militia to protect home and hearth against attacks from England — or wherever. But only those who actually read the Second Amendment would know that. The framers worried more about a standing army that would threaten states’ rights then they did an armed citizenry.

Indeed, it is the fact that the supposed “right” to bear arms guaranteed by the Second Amendment to the Constitution is predicated on the necessity to have a well-armed militia that is ignored in the frenzy to simply own and be prepared to use the latest assault weapon to protect ourselves against whatever ghosts and goblins might be out there wanting to get us. Americans, more and more of them each day, simply want to own and carry weapons because they are fearful. But in a brilliant chapter in his latest book, Six Amendments: How And Why We Should Change The Constitution, retired Supreme Court justice John Paul Stevens has suggested a re-write of the Second Amendment that would restore it to its original meaning and undermine the terribly weak argument we hear almost daily about the right to bear arms. His re-wording would place the emphasis of the Amendment where it belongs: on the need to have an armed militia, not the supposed right of every Tom, Dick, and Sally to pack heat. In making his case, Stevens notes that “For over two hundred years following the adoption of that amendment federal judges uniformly understood that the right protected by that text. . . applied only to keeping and bearing arms for military purposes.”  That lengthy period was followed by an extensive campaign by the NRA to help the gun manufacturers sell weapons, and this altered the game radically.

The Amendment, as the framers wrote it, states 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.” Stevens suggests a five word insert that would clarify the meaning:” A well-regulated Militia, being  necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.” Positively brilliant.

What this means is that those who have been designated as protectors of the nation, say the National Guard, have a Constitutional right to keep and bear arms — others do not. This is clearly what the founders intended and the way it was understood for 200 years, and if it were written in this fashion it would undermine the arguments of the nutters today who are responsible for approximately eighty-eight firearms deaths every day in this country (30,000 each year) and might possibly open the door to a debate at the highest levels about whether or not there ought to be some sort of restrictions on the sale and use of such things as automatic weapons that are clearly designed to kill people, not wild game. As Judge Stevens points out:

“Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly  would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.”

Organizations like the National Rifle Association would continue to argue for the “right” of everyone and his dog to own guns of every possible variety, but on this re-write of the Second Amendment they would have to base that supposed “right” on something other than the Second Amendment which, as Stevens argues, never did support such license. What the grounds for that supposed “right” might be in the absence of a misreading of the U.S. Constitution one can only imagine; but one can bet guns would continue to be sold to frightened people who really don’t need to pretend they have any sound reasons for simply wanting to own a gun.

U.S.A! U.S.A!

The citizens of this country, and Boston in particular, welcomed the news of the capture of 19 year-old Dzhokar Tsamaev with applause and immense pride. Clearly, there was a sigh of relief that could be heard as far away as California as the young man was found, almost by mistake, and the terrible events surrounding the Boston bombing seemed to be at a close. The relief is warranted as the thing this young man and his brother did defy description and raise more questions than we have answers for. But the chest thumping, obscenities from David Ortiz, and shouts of U.S.A! U.S.A! that could be heard around the country must give us pause. Our extravagant patriotism frequently spills over into ugly, chip-on-the-shoulder jingoism. And often it is not the least bit deserved.

From all reports, the young man was badly wounded and in pain when he was discovered hiding in a boat in a wealthy suburb of Boston beyond the net that had been spread to catch him and just before the search for the man was about to be called off. The capture of the young man, barely alive, was touted as an act of heroism on the part of the police and National Guard, when, in fact, the heroic act was that of the man who owned the boat who had the courage to look under the tarp to see if there was someone hiding inside. (Courage is sometimes difficult to distinguish from stupidity. Tsamaev was known to be “armed and dangerous” and peeking under the tarp was not the smartest thing the man ever did: he is lucky to be alive.)  Those involved in the capture showed courage, since they didn’t know what to expect. Yet the rest of us who had nothing to do with the capture acted as though we were the ones who caught the young man and brought him to the hospital. Americans are not short on pride and even arrogance, taking credit for the things that they have had nothing to do with, such as landing a man on the moon, placing a chimpanzee in orbit, or inventing sliced bread. We are not known as a people who hide our candle under a bushel, sad to say.

But the thing that keeps being ignored as this story unfolds is the question why two young men, seemingly perfectly “normal” and even bright and able — the young one even looking somewhat angelic in the photos that have been made public — would resort to this sort of suicidal act. And we hear little, if anything, about the possibility that this act of terrorism may well be a “pay-back” for the acts of terrorism this country is committing even as I write this blog. I speak, of course, of our drone strikes that are taking hundreds of innocent lives while we thump our chests in pride because a 19 year-old boy has been taken alive by an army of law-enforcers after an admittedly horrendous act of cruelty. The only mention of the possible quid-pro-quo is a cartoon I saw in USA Today that showed two monsters holding time bombs, identical in appearance except for the fact that one was wearing a tee-shirt labelled “Made In USA.” The cartoon directed our attention to the fact that the act of terrorism our law-enforcers brought to a close is merely one side of a two-sided coin. When we pause for breath after shouting out how proud we are of this nation and its brave men and women (who do deserve the praise they receive) we might want to ask again why these two very young men did this terrible thing and whether or not, perhaps, recent actions on the part of this country have bred hatred in other regions of the world, actions that are very likely to come back to haunt us repeatedly as a result of our swagger and presumption of moral superiority that leads us to ignore our acts of terrorism against others while we condemn similar acts when they are directed toward ourselves.

Hate-Mail On The Web

A piece of hate-mail making the internet circuit these days expresses strong feelings  about the change in wording as a flag is presented to the family of a Korean War veteran. The wording has been changed from “On behalf of the President and a grateful nation …” to “On behalf of the Secretary of Defense and a grateful nation …” This seems a minor change in a ceremony designed to honor the fallen veterans of past wars. But not so for the 85 year-old uncle of a man who was obviously outraged by what he was hearing.

The nephew’s long and somewhat incoherent tirade is being read by millions of readers on the internet as I write this, though the thoughtful response to his diatribe is largely ignored. The nephew in incensed and tells his readers “Obama has taken off the gloves,” and he (the writer) is “ASHAMED” of his country. In the end he hopes the readers will “listen to the voice of reason” (!) which is a “welcome change from the insanity plastered across the country by the liberal media.”

The response to this diatribe comes from a trainer with the Army National Guard who carefully explains that the order to change the wording in the burial ceremony did not come from President Obama, but came in 2007 at the behest of then-President George W. Bush. So apparently President Obama still has his gloves on. As the trainer explains, “It was not a conspiracy to undermine the honors given to veterans, but to protect the oaths we are sworn to uphold.”  While the clarification is most interesting, the letter itself is not worth wasting time on except as a symptom of something deeper. What are we to make of this?

To begin with, of course, the internet makes it possible for all sorts of crazies to reach thousands, if not millions, of readers in minutes. This is not the first, nor will it be the last, harangue from the fingers of an out-of-control “victim” of what he or she perceives as a conspiracy to deprive them of their due. The “liberal media” will doubtless be blamed many times, even though the media are hardly “liberal” and might even lean a bit to the right, sponsored as they are by the corporations that are keen to capture and hold the minds of the buying public.

It is sad that the writer of this diatribe feels ASHAMED (his word in caps) of his country. But then as one of his readers I am ashamed (lower case) of this man’s uncontrolled rage — and his unwillingness to track down his sources and ferret out the truth of the matter before he goes public. But this sort of thing will be more and more frequent as we near elections in November. Hate-mongering, along with fear-mongering, is the name of the game. It works, as Rush Limbaugh has shown us again and again. It’s all about appeal to raw emotions. This letter might not even be the genuine article. It may be a hoax written to support a political candidate (any political candidate) who opposes President Obama in the coming election.

We should expect more of this vitriol, not less. The internet is open to this sort of thing, just as it is open to careful thought and precise expression. We need to learn to dismiss the former and welcome the latter. It is the price we pay living as we do in a day of instant communication, weak-minded citizens, and political candidates with unlimited funds and no moral scruples whatever.