Thursday, March 28, 2013

Why the second amendment doesn't matter in the gun laws debate.


 No matter what side of the gun control debate someone happens to be on, whether its gun control advocates like VP Joe Biden, Diane Feinstein, Mayor Bloomberg, the courageous Gabby Giffords and her husband, or those on the other side who want no gun control at all, they all have one thing in common -- they have no idea what the second amendment is really all about,  why it's there, what it means,  the original intent of the Framers when they wrote it, or even what the words in the amendment actually mean.   They think they know, but they don't..

Whether its gun control proponents, even those who want to see a ban on weapons like the AR-15, or those who oppose any and all gun restrictions, both sides bring up the second amendment all the time,  either claiming that such and such gun law doesn't violate an individual's "second amendment rights",  or the other side claiming that it does. 

 Whether its conservative Texas senator Ted Cruz, or his nemesis on gun control Diane Feinstein all of them seem to agree or accept that the second amendment is guaranteeing an individual right to own a gun. They are  all completely wrong including journalists writing about the gun debate, who, as usual have no idea what they are writing about and are too lazy to find out.

 Perhaps Senator Cruz and Senator Feinstein, and everyone else on both sides of the gun control issue would be surprised to learn that in the first 224 years of the existence of the second amendment, the constitution it's part of, and the Supreme Court the constitution created, in every case, every Supreme Court in those 224 years without exception, when having to rule on whether the second amendment conferred an individual right to own a gun,  the majority ruled it did not. In every case. For 224 years.

The only Supreme Court to rule otherwise is the present court, or more precisely, the five so called conservative members of the court,  the court which gave us Citizens United which said a corporation is a person,  who much to the consternation of many  true conservative judges, overturned 224 years of Supreme Court precedent which said the second amendment had nothing to do with an individual right to own a gun and last year ruled that it did.

To lay claim to the charge that the ruling was probably the most corrupt and dishonest since the Dred Scott decision in 1859 is the fact that Justice Sam Alito, in his 5-4 majority opinion, invoked, not the constitution of the United States or the second amendment itself,  but Blackstone's Rights of Englishmen, a document not only not the constitution, but a document not even American in origin which was written 100 years before the United States was created.

Imagine the hue and cry of conservatives in and out of congress if five liberal justices had ruled the same way and based their decison on something other than the constitution. Conservatives in and out of congress would be screaming for the justices impeachment since conservatives are always complaining about "activist" judges who find rights in the constitution that aren't there. Which is exactly what the five current conservative Supreme Court justices did in their decision.

The reason every  Supreme Court in 224 years ruled that the second amendment had nothing to do with an individual right to own a gun, is because there is absolute proof beyond the slightest doubt, that the purpose of the second amendment, the intent of those who created it,   its very reason for existence, had nothing to do with someone's right to own a gun. And the true meaning of  the words in the second amendment, for those who understand the words,  reflect that.

While there is a mountain of proof that the second amendment's existence and purpose had nothing to do with an individual right to own a gun, and the true meaning of the amendment was not to confer any such right, you only have to know two facts about the second amendment to understand that.

First, the word "arms" does not mean guns.It didnt mean guns to the Framers who wrote the amendment in 1789, it  didnt mean guns in 789, it didn't mean guns in 1969 and it doesn't mean guns today.  It has never meant guns.  In fact the creation of the word "arms" predates the invention of the gun by more than 1,000 years and given that the amendment was carefully written and rewritten seven times ( and all seven versions can be seen in the Library of Congress) it is proof they chose their words carefully to make sure the amendment meant exactly what they intended.

The very word "arms" is derived from the word "army", which, as everyone knows, is an organized group of people whose purpose is to fight a war and engage in battle.Armies carry arms.

No one with even a passing understanding of the English language doesn't understand and agree,  when it is pointed out,  that there is a world of difference between "arms control" and "gun control". "Arms control" deals with weapons of war most often weapons possessed by governments and their proliferation. These "arms" include everything from fighter jets to chemical and biological weapons, to missiles, to bombs. "Arms control" has nothing to do with  individuals and their guns.

Similarly everyone knows there is a world of difference between a "gun dealer" and an  "arms dealer". You can't buy a Smith and Wesson, a Glock or a shotgun from an arms dealer. He would laugh at you. Conversely you can't buy what an arms dealer sells -- rocket propelled grenades, Katyusha rockets, rocket launchers, surface to air missiles, IED's,  and yes assault rifles and machine guns, at a gun store. . Arms dealers sell weapons of war, gun dealers sell guns. There is a world of difference.

And finally, the "arms race" between the United States and Soviet Union from the 1950's through the fall of Communism in the 80's, as everyone knows had nothing to do with which country had more people with guns in their closets. The "arms race" had to do with who had more nuclear warheds and  the ICBM's and long range bombers to deliver them..

Do not think for one second that those who wrote and ratified "We hold these truths to be self-evident that all men are created equal"  or "we the people of the United States in order to form a more perfect Union" did not understand the difference between the word "guns" and "arms".The Framers understood the word "arms"  to mean exactly what it's always meant and means even today -- weapons and implements of war. Which is why it was chosen.

In 1789 when the Framers created the second amendment, "arms"   of course included muskets. But to the Framers it also meant cannon, cannon balls, powder, rockets, bayonets, even warships and forts. Because the whole point of the second amendment was to give individual states the constitutional right to raise and maintain their own well trained or "well regulated", armies and to have whatever weapons of war they wished.  Because the whole purpose of the second amendment was to enable the maintaing of state militias  who would be able to stand toe to toe with a federal army if it became "necessary for the security of a free state",  to protect the states from the possibility of a future president turned dictator trying to use a federal army to enforce his will.

This is crucial to understanding the purpose and meaning of the infringement clause and to understand why Justice Scalia, seeming to understand the constitutional mistake they made and the Pandora's Box they opened, immediately tried to backtrack on their decision by saying the right granted in the second amendment was not limitless. He could not have been more wrong. The amendment specifically states it is limitless and  in fact the amendment would be useless if it weren't limitless. The whole point of the amendment was to give the states the capacity to stand up to a federal army with the same weapons the federal army had.  For the states to be limited in what weapons -- "arms" they could have would make the whole purpose of the second amendment useless. But Scalia knew the chaos that would ensue if you applied that right, not to a state government, but to individuals.
If anyone has any doubt that the true meaning of the second amendment is to allow states to have whatever weapons of war they wished,  look at the National Guard today, the state military force that the "well regulated militia" which is the subject of the second amendment has morphed into.

Tank battalions from the Alabama National Guard fought in Iraq. So did  state National Guard units from just about every state in the Union. George W. Bush was a member of the Texas Air National Guard, which has it's own F-15 fighters which Bush and other members of the Guard were trained to fly. The "arms"  possessed by state National Guard units  is a direct result of the second amendment right of the states to have their own armies and all weapons of war they wish. And they do.

In order for the current conservative members of the court to make its constitutionally dishonest decision they had to abandon the cornerstone of conservative jurisprudence, the principle each of them at one time or another embraced as essential,  which is the principle of Original Intent which states that where the clear intent of the framers is clear it is that intent that is to be applied.

This is why former Chief Justice of the Supreme Court Warren Burger, a conservative appointed by Richard Nixon said in 1990 that the idea that the second amendment had anything to do with an individual right to own a gun "is the subject of the biggest fraud -- I repeat the word fraud -- ever perpetrated by an interest group ( the NRA) on the American people in my lifetime".

And more recently, conservative judge Harvie Wilkinson III of the 4th Circuit US Court of Appeals in criticizing the Supreme Court's Heller decision that the second amendment applied to individuals said, " I prefer Fox News to CNN and the Washington Examiner to the Washington Post, but the decision of the majority read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.”

The only other thing one needs to know to understand the second amendment is what the words " the right to bear arms" really means and what those words meant to the Framers.

The words do not mean the right to use a gun as most people wrongly assume. It does not mean the right to use a gun to hunt, or to target shoot or to have a gun for  your own personal self-defense or to protect your livestock. Having a gun for those purposes was so basic to life in 1789 that to think the Framers spent three weeks debating it is preposterous. The term "to bear arms" as used and understood by the Framers in 1789 is a term that had a very specific meaning because the term "to bear arms" had only one true meaning in 1789. "To bear arms" meant to go to war.

 The little known fact which explodes most people's assumptions about the second amendment along with the current  Supreme Court ruling is that the original debate among the Framers that created the second amendmet was transcribed by a  stenographer in the room while the debate was taking place, transcribed  sometimes verbatim. It is a virtual certainty that most people who pontificate about the second amendment are not even aware this transcript exists much less having read it. And reading it settles once and for all what the intent of the amendment was and is. Because the idea of an individual right to own a gun is not even discussed.

The second amendment came into being when a representative from North Carolina stood up and offered a proposition that all  at the constitutional convention agreed with. The proposition was "the existence of a federal army is a threat to liberty".

The question was then put to the Framers at the convention of what to do about it. The first suggestion was an amendment which would ban the federal government from even having a standing army. This was deemed impractical and unsafe. The next proposition was to allow the government to raise an army but only on an ad hoc basis contingent on a 3/4 vote of congress. That was also rejected as being impractical. The solution finally agreed upon after three weeks of debate was to allow the states to have their own well drilled, well trained standing armies -- state militias with a clear command and control structure as opposed to the Minute Man type militias that existed in 1775.  So a well trained, "well regulated" militia armed with whatever weapons of war the state wished, militias that could go toe to toe with a federal army if needed,  was the solution decided upon and which became the second amendment, a states right to have an army and weapons of war and to go to war on their own behalf if neccessary. Those states having their own armies or militias, armed with weapons of war is why the Civil War lasted four years.

During the entire three week debate that created  the second amendment individual gun ownership was never even brought up. Which is why Chief Justice Warren Burger called the idea that the second amendment applied to an individual right to own a gun "the biggest fraud ever perpetrated on the American people in my lifetime".

 Ultimately the reason why the second amendment doesn't matter in the current gun control debate is because  gun laws have always been a matter for local governments, not just states, but individual towns, cities, or villages. And what was suggested here some months ago,  that states and localities completely ignore last year's Supreme Court ruling and enact whatever gun laws they wish is just what is happening.Gun laws that work in Montana make no sense in New York. And vice versa. It is and always has been a local matter. And it is not likely, given Scalia's statement that the second amendment is not "limitless", that the Supreme Court would overturn any gun law on second amendment grounds.

New York enacted the toughest gun laws in the country and Colorado followed suit with their own new tough laws. On the other end of the spectrum, South Carolina is considering a law that will not require any gun permits at all, especially to carry concealed weapons.

And that's the way its been for 225 years -- gun laws not rights have always been decided by individual states and local governments. In the 1880's Wyatt Earp banned guns completely from Tombstone, Arizona and no one ever complained he violated their constitutional rights.

Its up to each individual locality to decide for themselves what gun laws work for them. The second amendment has nothing to do with it and never did. The federal government, if it so chooses could ban or regulate the sale of any weapon they wished to private individuals since it has jurisdiction over interstate commerce. And none of that would be unconstitutional.

In the end, with all the bombast and evocation of the second amendment on both sides, it won't affect gun laws anywhere. Legislatures and how they vote will be what matters. Justice Scalia's backtracking on the court ruling by saying the second amendment is not unlimited when in fact it specifically says it is unlimited indicates the court will uphold as constitutional almost any gun law or regulation a state or town or village wants to impose.

The rest is up to them.


Anonymous said...

Very well said, but if the framers thought everything out so well why did they say "well regulated militia" and not just "state militia"?

They knew very well that the individual states could and would become puppet organizations of the federal government.

Marc Rubin said...

They said "well regulated" to differentiate from the type of Minute Men militias where untrained militia men would drop their pitch forks and meet on the village green to skirmish with the British. That was envisioned as not good enough and to be replaced by well trained, well drilled militias with a clear command and control structure, that is what was meant by "well regulated". These would be militia that, much like the Guardsman of today would, based on how each state wanted to handle it, meet once a month or twice a month to be drilled and trained as a fighting group on a regular basis, not just when the bells rang.

Anonymous said...

More drivel to deny the FACT that the 2nd Amendment grants the people the un-infringeable right to have a gun.

A. Stevens said...

Even though its obvious that you didn't think about any of the information presented, he is saying that during the time of the founders guns were so widespread as were other mundane weapons that they did not even see to make a law covering their status, it was inferred that they were allowed. What the Second Ammendment does/did(?) cover is the right of states and localities to maintain their own defense forces and be granted all liberties in their choice of armaments so that one day if the Federal government or even another state or foreign source attacked them then they would have a standing chance to defend themselves.