Tag Archives: second amendment

Violence In America

In some sense, I suppose, this post can be read as a follow-up to my previous one since both seek to explain the same thing.

Numerous theories have been advanced to explain why it is that America is so prone to violence and leads the world in violent deaths by firearms. Perhaps the most popular study was that by Michael Moore in his documentary Bowling for Columbine in which he concluded that the only thing that set America apart from the rest of the world was the violence shown on our news programs. I always thought this a weak conclusion, but I saw the difficulty in finding a key ingredient in the formula to explain America’s past and present tendency toward violence.

Upon reading John Murrin’s essay about the “Making and Unmaking of an American Ruling Class”  (in his book Rethinking America) it occurred to me that perhaps the answer to the question why America is such a violent country lies in the historical record which shows Americans to have always, from the beginning, insisted on having a firearm ready at hand. To understand this a bit better, it might help to have some background.

Murrin argues that many of the earliest settlers in this country were never from the elite classes in England (in particular) but, rather, “the younger sons of English gentry or merchants.” These men aspired to leadership in the new country and managed to create an appproximation of the English ruling classes, albeit not bound by the same rules that might lead to an aristocracy — though there were some, such as Alexander Hamilton, who would have loved to mimic the English royalty as much as possible. Americans, for the most part, prized their independence and while early on they regarded themselves as English citizens, with all that that entails, they eventually, as we know, threw off the English yoke in order to achieve the independence they had come to value so highly. And they never trusted those who aspired to aristocracy. Hamilton and the Federalists hung on until Jefferson’s presidency, but they then faded into the dust. America’s thirteen colonies  became, in Murrin’s words, a “paradise for the younger sons” who were denied status among the landed gentry in England by laws such as entail and the so-called rights of primogeniture.

More to our present point, early on the colonies had no standing armies — with the exception of New York which had a small one — and the governors, appointed by England for the most part, ruled by deference and the handing out of privileges rather than the use of force. This made America unique among civilized nations in the seventeenth and eighteenth centuries. Moreover, as Mullin points out,

“. . .the absence of a standing army in most colonies for most of the colonial era compelled the government to insist (except in Quaker societies) that the settlers arm themselves. In no American province did the government establish the monopoly of violence that Europe took for  granted by the eighteenth century, and firearms were always and still are more widely available in America than in any other Western countries.” [Italics added]

This helps explain the insistence in our Bill of Rights upon the “right” of the militia to bear arms — the Second Amendment that is so very controversial today. That Amendment, please note, guarantees every male citizen the right to bear arms because he is expected to defend his colony against any presumed outside threat to peace and order; like Cincinnatus in ancient Rome he was a citizen-soldier. In the end, of course, the militia was called upon to free the colonies from English rule, which provided George Washington with his greatest challenge, constantly frustrated by his inability to mold such a diverse group of volunteers, who deserted in appalling numbers, into a disciplined army.

In any event, the notion was with us from the very start that all men were expected to bear arms because of the lack of a standing army; the possession and use of firearms has always been a characteristic of the American male (at least). It’s in our blood, so to speak. And as we fought to protect ourselves from the English, the French, and even the Spanish — not to mention to remove the Native people from the land we wanted for ourselves — we became a violent nation, a nation that not only insisted that we be allowed to possess arms but to use them to get what we wanted.

I am not sure this will pass as a complete explanation as to why we are such a violent nation (causal connections are notoriously difficult to make, as I noted in my previous post) but it certainly helps us to understand why we might share a deep sense of this so-called “right” to arm ourselves and resort to violence whenever opposed by the will of another. I seriously doubt whether it explains why demented young men force their way into our schools and shoot unarmed teachers and children, which I sought to understand in my previous post.  But it helps us to understand the prevalence of firearm in our homes and makes it easier to see why those who own them might be more inclined to use them if harried or thwarted in their desire to have their way. As I say, it’s in our blood — or so the historical record would suggest.

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History Lesson

In the wake of the most recent spate of killings in a high school in Florida we hear once again the tired mantra “guns don’t kill people, people kill  people.” The whole thing is brushed aside as a case of poor mental health. And while there is some truth in this, since anyone who walks into a school and starts shooting innocent teachers and students has to be clinically insane, it remains a fact that guns DO kill people and automatic weapons kill a great number of people in a very short time. Let us now hush the mantra and the mindless dismissal of real causes to consider the fact that there is hard evidence that tougher gun laws do, in fact, reduce the number of gun deaths. This has been shown in the case of both Japan and Australia.

Those who insist that the possession of an automatic weapon is a question of a Constitutional right guaranteed by the Second Amendment need to read that amendment closely and consider the fact it was designed to protect the right of the militia to bear arms and that for two hundred years after the adoption of the Constitution federal judges uniformly understood that the right protected by the Second Amendment was limited in these two ways:

“.  . .first, it applied only to the keeping and bearing arms for military purposes, and second while it limited the power of the federal government, it did not impose any limit whatsoever on the power of the states or local governments to regulate the ownership of firearms.”

These are the words of retired Supreme Court judge John Paul Stevens who has written a book about the six amendments we need to incorporate into our Constitution. He goes on to point out that it wasn’t until very recently, 2008 in fact, that the tough gun laws that had been passed in this country to deter, for example, the sale of sawed-off shotguns and tommy guns to ordinary citizens were weakened somewhat when the Supreme Court, by a vote of five to four, decided in District of Columbia v.Heller that the second amendment protects a civilian’s right to keep a handgun in his home (not a tommy gun or an automatic weapon) for the purpose of self-protection. Then, as recently as 2010, by another vote of five to four, the Court decided in McDonald v. Chicago that the Due Process clause of the Fourteenth Amendment limited the power of the city of Chicago to outlaw the possession of handguns by private citizens. Stevens was involved in the discussion of both of these cases and he dissented in each case. He notes that

“. . .nothing in either the Heller or the McDonald opinion poses any obstacles to the adoption of preventive measures. . . . the Court had made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes like self-defense.”

In a word, Stevens reminds us that the Second Amendment was never designed to protect the presumed rights every Tom, Dick, and Sally to own and use weapons designed for warfare.  Stevens is convinced that the insertion of a brief clause in the wording of the Second Amendment might help clear this up. It would then read:

“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.”

That brief clause would make it crystal clear that the Amendment was designed to protect the right of those chosen to defend their country — in our case the National Guard — and not everyone else who now incorrectly makes the demand to own and use automatic weapons. The likelihood that this amendment would pass this Congress is very near to zero — given their obligation to the NRA and the gun manufacturers who got them elected and threaten them with the withdrawal of funding in their next political campaign, coupled with immense support for their opponent. Nonetheless, as Stevens points out, the states could pass tougher laws with no restrictions whatever from either the Constitution itself or possible legal precedents. Moreover, even at the federal level:

“. . . the Congress’ failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything the Supreme Court has said about that amendment.”

It is assuredly the case that the availability of guns does not, in itself, remain the main cause of the insane spate off shootings in this country. Guns alone are not the sufficient condition, as logicians say, of the gun deaths. But they remain the necessary condition in that if there were no guns there could be no gun deaths. And while the right to bear arms for self-defense and the shooting of game might be seen as protected by the Second Amendment of our Constitution, the possession of automatic weapons clearly is not.

It is time, indeed, past time, that we stop all the mindless drivel and pass laws that will take the guns out of the hands of those who are, admittedly, not fully aware of what it is they are doing, by making it impossible for them to purchase automatic weapons at the very least.

“Defense” Spending

In light of the recent hoopla surrounding Veteran’s Day, I was put in mind of some of the warnings that I included in a post a few years ago. I want to make clear that I am not denigrating the veterans who have put their lives on the line to defend this country, but I ask that we think about our priorities at a time when so many people suffer without adequate clothing, food and shelter. 

This country was founded on the principle that a standing army should never be necessary; under the Second Amendment a militia made up of ordinary citizens would be guaranteed the right to bear arms to protect their country from tyranny. Even after the First World War we had no standing army, though in 1911 the concept of a militia was laid to rest. After the War to End All Wars, the country’s military might continued slowly to grow, and in the 1930s our government had a standing committee in Congress to oversee the military; in 1934 Congress passed the National Firearms act designed to keep the production of weapons of war in the hands of the government — and such weapons as machine guns out of the hands of civilians. In 1939 the Supreme Court upheld the Firearms Act insisting it was entirely consistent with the Second Amendment.

But even keeping them out of the hands of the citizens didn’t keep the production of weapons of war from making some people in this country very wealthy, despite the fact that in 1934 the Senate Munitions Committee was headed by a Republican, Gerald Nye of North Dakota, who famously said “The removal of the element of profit from war would materially remove the danger of more war.” Not long after they were uttered, these prophetic words were soon drowned out by the sound of bombs dropping on Pearl Harbor. By the end of the Second World War a standing army was a matter of course. And with the Cold War ongoing the power of the military grew — as did the wealth of those companies providing the military with weapons and armament, resulting in President Eisenhower’s famous warning against the “military-industrial complex.” That warning has also been drowned out, this time by the sound of the cash registers ringing up huge profits for munitions companies like Lockheed Martin, a firm whose contracts with the Pentagon amount to some thirty billion dollars annually. This company alone spends fifteen million dollars a year to persuade members of Congress that we need a strong military presence in all parts of the world and that the military needs the very latest in weapons. No conflict of interest here!

Photo from The New Yorker magazine

Photo from The New Yorker

It is well known that members of Congress, on both sides of the aisle, are beholden to the “military-industrial complex,” that entity that has morphed into a hydra-headed monster now in control of Washington. Lockheed Martin has contributed to the election of three hundred and eighty-six of the four hundred and thirty-five members of this Congress. In the distance you can hear (if you listen very carefully) the fading words of President Eisenhower:

“Every gun that is made, every warship launched, every rocket fired signifies in the final sense a theft from those who are hungry and are not fed, who are cold and are not clothed. This is a world in arms. This world in arms is not spending money alone; it is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. . . This is not a way of life in any true sense.”

Jill Lapore, the author of a most interesting article in the January 28th issue of The New Yorker tells us that “The United States which was founded on opposition to a standing army is now a nation engaged in a standing war.” This, of course, is the so-called “war on terror,” which is not a war at all. She quotes Colonel Andrew J. Bacevich, a West Point graduate who fought in Viet Nam in 1970 and 1971, who warns us that we “have fallen prey to militarism, manifesting itself in a romanticized view of soldiers, a tendency to see military power as the truest measure of national greatness, and outsized expectations regarding the efficacy of force.” Bacevich is now a professor of history at Boston University and he had some profound remarks to make about the war in Afghanistan, which he likens to the War in Viet Nam. “The mystical war against Communism,” he says, “finds its counterpart in the mystical war on terrorism.. . .[mysticism] prevents us from seeing things as they are.” This from a man who knows whereof he speaks. And it should make us ponder the real costs of what is euphemistically called “defense.”

The Militia

I have mentioned a number of times in earlier posts that the Second Amendment is all about the militia — not about our right to carry guns. It’s clear from the way the amendment is stated that maintaining a militia is of central importance. It’s because the Founders insisted that each state have a militia and that there never be a standing army that they saw fit to mention the “right” to bear arms. Consider, for example, the following Article in the Constitution itself.

In the very first Article (Section 8) we are told that the Congress shall have the power, among other things, to

“. . .provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions; To provide for the 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.”

The concern here, clearly is to guarantee that the states will severally maintain an armed Militia, that there might never be a standing army. When it came time to put down the Whiskey Rebellion in Western Pennsylvania during George Washington’s first term as President, for example, he himself led a group of state militia Westwards. There was no standing army, though Alexander Hamilton worried that the new country might eventually need one. Moreover, the Second Article in the Constitution  that outlines the very limited powers of the President tells us that:

“The President shall be Commander-in-Chief of the Army and Navy of the United States [which were non-existent!], and of the Militia of the several states when called into actual Service of the United States. . .”

Indeed, what is clear from reading the Constitution is that those who wrote and passed on it were primarily concerned that the states would retain power over their own affairs and the Union would intercede only when absolutely necessary. At the same time, given Washington’s difficulties maintaining his army during the Revolution, there is concern that the Militia when called upon  be trained “according to the discipline prescribed by Congress” — i.e., by someone who knew what he was doing. It was assumed that the Congress would appoint someone with experience to initiate the actual training. There is, throughout the document, a concern for what is referred to in the Preamble as “the general Welfare,” or what those men regard as the Common Good, balanced by the determination not to allow the Union to lord it over the several states.

The President, as mentioned above, was to be more or less a figurehead. He is not Dictator as some who are currently running for that office apparently believe: his hands are tied tightly. The Congress, for better or worse (and we are seeing examples of the latter every day) holds the ultimate power. The President, as chief executive officer, has the power to execute the laws, not to make them. But, more to the point, the “right” to carry weapons mentioned in the Second Amendment was predicated on the need for a Militia to protect both the individual states and, if necessary, the Union. And, as the very conservative President Reagan said years ago, it does not rule out hunting weapons, but it also most assuredly does not guarantee every citizen the right to carry “AK-47s,  machine guns.”

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.

 

Joe The Plumber

If we are interested in such things, we can read in Wikipedia the following text about one of America’s “heroes.”

Samuel Joseph Wurzelbacher, better known by the nickname “Joe the Plumber“, is an American conservative activist and commentator. He gained national attention during the 2008 U.S. presidential election when, during a videotaped campaign stop in Ohio by then Democratic nominee, Senator Barack Obama, Wurzelbacher asked Obama about his small business tax policy. Obama’s response included the statement, “when you spread the wealth around, it’s good for everybody.” Obama’s response was seized upon by conservative media, as well as by Obama’s rival, Republican nominee Senator John McCain, as an indication that Obama was interested in the redistribution of wealth and had a socialist view of the economy. Wurzelbacher is a member of the Republican Party.

Since he expressed to then Senator Obama that he was interested in purchasing a small plumbing business,Wurzelbacher was given the moniker “Joe the Plumber” by the McCain–Palin campaign. The campaign subsequently took him to make several appearances in campaign events in Ohio and McCain often referenced “Joe the Plumber” in campaign speeches and in the final presidential debate, as a metaphor for middle-class Americans.

Wurzelbacher became a conservative activist, commentator, author and motivational speaker. In 2012, he ran on the Republican ticket to represent Ohio’s 9th congressional district in the House of Representatives, losing to Democratic incumbent Marcy Kaptur.

And, so I have heard, he became the darling of Fox News. He’s supposed to represent your typical American as embraced by the Republican Party and represented by ordinary folks like Mitt Romney. The reason one might be interested in recalling this name is because it is again in the news; the man has opened his mouth again and showed us that there is really nothing between his ears. After the shooting deaths of three students and the injuring of thirteen others in a Santa Barbara Community College earlier this month, Joe declared that “As harsh as it sounds — your dead kids don’t trump my Constitutional rights.” There are two things about this inane comment that are disturbing.

To begin with, of course, is the crass self-assertion that rubs salt in the wounds of the parents of those who have lost their children to another senseless shooting in a country where such things are becoming alarmingly commonplace. I couldn’t possibly write a better response than did Erica Lafferty, the daughter of one of the women slain in the Sandy Hook shootings in December of 2012. Her comments can be read in their entirety here. But the second point has to do with this man’s typical misreading of the U.S. Constitution. I have held forth a number of times on this topic and will not repeat here what I have said in previous blog posts, except to say that retired Supreme Court Judge John Paul Stevens has expounded on a point I have made in those posts, to wit, that the second amendment to the Constitution does not guarantee people like Joe the Plumber’s so-called “rights” to keep and bear arms. It guarantees the rights of members of the militia to keep and bear arms.

This point cannot be made emphatically enough, since the widespread misunderstanding of the Constitution has led to the irrational attempts to justify the presumed rights of every American of every age and political persuasion to own automatic weapons that are designed to kill human beings on the grounds that they have a Constitutional right to own such weapons. The usual argument is that once such weapons are banned then “they” will take away our hunting rifles, though I have never heard anyone claim that hunting weapons should be taken away from people. Those who argue for some sort of calm and reasonable approach to gun control simply want to help remove those automatic weapons that are clearly designed for killing human beings and are readily available from the sporting goods department at Walmart, among other places.

In other words, folks like Joe the plumber who reveal their arrogant self-righteousness about their presumed “rights” and the determination of “liberals” to take away their shotguns and 22’s are guilty of what logicians call a “red herring.” There is no such movement. Second Amendment aside, no one wants to take hunting weapons away from Americans.  But the attempt  by folks on both the political left and right to bring light to an issue where there is at present so much heat  is thwarted at every turn by the immensely powerful gun lobby whose only goal is to keep producing and selling expensive weapons of all descriptions behind their appeal to a Constitutional amendment that was never written to guarantee them such a right in the first place. And the N.R.A. has shown repeatedly that they have enough politicians in their pocket to keep any sort of meaningful gun control issue from even being raised in Congress.

But, that’s the issue, isn’t it? How does one shine a light on such darkness where greed, irrationality, hatred, and fear dominate and reason can find no purchase?

 

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.

More From the N.R.A.

The NRA is at it again. They want the Supreme Court to read the Constitution the way they do, to agree that the Second Amendment permits minors to carry guns outside the home. The story reads, in part:

The Second Amendment, at its core, spells out not one, but two, rights when it protects “the right of the people.”  There is a right to “keep” a gun, there is a right, to “bear” a gun.  There is an “and” between the two in the text, so that might well be taken as a significant indication that these are separate rights.

The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home.   But it has refused repeatedly since then to take on the question of whether that right exists also outside the home.  If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.

The National Rifle Association, and some of its members, are now pressing the Supreme Court to answer that question.  They are doing so in two cases testing whether the federal government and the states can restrict the rights of minors to possess a gun outside the home.   The Court is expected to take its first look at those cases later this month, to decide whether it will hear either or both of them.   The federal government, once again, is urging the Court to bypass those cases, as it has done with perhaps a half-dozen others seeking clarification of the Second Amendment’s scope.

In a case from Texas, the NRA’s lawyers have reduced to elementary constitutional logic the question of what a right to “bear” guns means: “The explicit guarantee of the right to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did not protect the right to ‘bear’ arms outside of the home, where the Amendment already guarantees that they may be ‘kept.’   The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus.”

Now there are two things about this that strike the attentive reader right away: the NRA wants kids of any age to be allowed to carry guns and they want them to be able to do it outside the house. Got it? In their argument they show a painfully careful reading of the Second Amendment that, they insist, allows not only the “keeping” but the “bearing” of arms. Thus, they say, the latter permits taking weapons anywhere and apparently at any age — though I honestly don’t see where the lack of age restriction comes in. Perhaps it’s somewhere in the small print.

However, in their close reading of that Amendment the NRA lawyers seem to have ignored altogether the antecedent of the hypothetical sentence. It says 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.” I have blogged about this before, but apparently the NRA lawyers don’t read my blogs. And that’s a pity, because the entire case for the so-called “right to bear arms” rests on the supposition that there will be no standing army and because of that we require a militia. But we do have a standing army (and then some). It follows that the right to bear arms is not protected by this Amendment, since there is no need for a militia. The two are conjoined in the Amendment which the NRA lawyers claim to have read so carefully.

Of course this is the group that stood by silently when the Congress was debating the possibility of outlawing certain types of weapons to keep them out of the hands of the militant blacks during the turbulent 1960s, and said nothing when Congress actually passed The National Firearms Act in 1934 prohibiting such things as sawed-off shotguns during the days of Al Capone, a law that was later upheld by the Supreme Court as Constitutional. If you read the decision of the Court in 1939 regarding the National Firearms Act, titled United States vs. Miller, it is clear that the Court regarded the necessity for a militia as the key ingredient in the Second Amendment. Their reasoning was as follows: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Not only can the NRA apparently engage in selective protest, but also selective reading. So much for matters of principle and a genuine concern for what the Founders actually said. And, seriously? Kids carrying guns?

Something Rotten

Marcellus, in Shakespeare’s Hamlet, noted that something was rotten in the state of Denmark. He may have been right, but he obviously never checked out Florida where the stink is so offensive it provokes nausea. The recent juxtaposition of two stories coming out of that state are testimony of that condition. On the one hand, George Zimmerman, who shot a 17 years old boy to death on a Florida street because he “looked suspicious” was found not guilty of murder — or even of manslaughter. Apparently the jury was in denial. That is, they denied that a young man had been shot to death. At the very least, this was a clear case of manslaughter. One might have determined that Zimmerman was not guilty of murder, given the insane “stand your ground” law in Florida that allows anyone to shoot anyone else if they suspect possible foul play. But that tells us a great deal about the law and very little about Zimmerman’s culpability.

But wait a minute. Apparently some Floridians can’t shoot anyone they like, or even shoot at them.  At least not Marissa Alexander who was sentenced to twenty years for firing warning shots at an abusive husband because he was about to attack her and she feared for her life. She had already gone to the police about the man’s aggressive behavior, but a jury in its wisdom decided that even though she killed no one she should be locked up for our safety. Apparently she was not to be allowed to “stand her ground.”

Now, despite the fact that this is a clear case of a double standard, since we are talking about the same law in the same state we might simply note the hypocrisy and pass on. But when we think of the family of Trayvon Martin who will have to live with the injustice of the verdict, or we think about Marissa Alexander who faces 20 years in prison for defending herself against an abusive husband we must pause and reflect.

The country’s love of guns and violence has been noted often and written about until it no longer registers on those who might actually give a damn. But the new spate of laws around the country — especially in the South — that not only allow but (in a town in Texas) actually require that people carry guns to protect themselves are marginally insane. It is one thing to defend the possession of hand guns and automatic weapons on the grounds of a complete misreading of the Second Amendment, but it is quite another to insist that people must carry guns and when something moves, pull the trigger. But there is a connection, of course. Those who insist that we all have a “right” to carry a gun are scared to death that the wrong people (i.e., people other than themselves) will get a hold of them. So they insist that their legislators pass laws allowing them to defend themselves against the “crazies” who might want to shoot them down in the street. It doesn’t take a genius to see where this leads.

Is it too obvious to point out that the solution to this entire insane scenario is to take the guns away from everyone? That, of course, will never happen. But it is none the less so obvious a three year-old could figure it out. In the meantime, we will have more cases like the George Zimmerman case and more applications of the double standard as in the Marissa Alexander case and we might as well get used to it. The fact that both victims in these cases were black enters the equation, of course, but we now live in an age of terrorism where fear rules, reason is stunted by the passions, and the stink you smell will simply get stronger as people continue to commit stupid acts and juries demonstrate their blindness to simple facts.

Homeland Security

In my recent travels to eastern Kansas (which is quite beautiful, by the way) my wife and I stopped for a snack along the way at a Subway in Missouri Valley, Iowa (which is not so beautiful, by the way). As I sat there eating my healthy sandwich I watched a paunchy, middle-aged man and his thin, mousey wife enter. They had arrived in a large SUV (which has to be an expression of his insecurity, I figure) and he sauntered in wearing a black tee-shirt with the slogan: “The Second Amendment: The Original Homeland Security.”

Now I confess I have a thing about tee shirts with in-your-face slogans written on them — though I do love the funny tees — and this one gave me pause. After all, the second amendment is about forming a militia and Homeland Security was formed, ostensibly, to fight terrorism after the Twin Towers were destroyed. So I am wondering: how can a militia be effective in fighting terrorism? How will a number of eighteenth century muskets — no matter how many — fight off huge planes piloted by zealots determined to fly them into tall buildings? What on earth is this man thinking? But, I jest. It occurs to me that this is imply one of the millions of slogans put out there by gun aficionados to affirm their “right” to bear arms. I assume this man has a SUV full of automatic weapons and the next time he sees a plane headed for a tall building he plans to open fire — with his mousey wife urging him on. Or something. It’s not clear what people like this are thinking — if, indeed,  you can call that thinking.

In any event, it is time the defenders of the  second amendment to the Constitution buy a copy of that document and sit down and read it. As I have noted before, it’s not about the right to bear arms. It’s about the necessity to form a militia in lieu of a standing army. But I will stop kicking a dead horse since those who read these blogs are getting tired of hearing me go on about what that document actually says. And it is not even a little bit likely that men like my middle-aged, paunchy freedom fighter will ever actually read the document or, even if he did, that he would understand what the Second Amendment actually says. So I suppose I should take solace in the fact that my country is now protected by well-armed, paunchy, middle-aged men who drive gas-guzzlers filled, I imagine, with automatic weapons and I need no longer fear terrorism. Boy, what a relief!