Wednesday, December 19, 2012

The Conspiracy to Re-shape the 2nd Amendment

The New Yorker
Conservatives often embrace 'originalism,' the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a 'living' constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century.

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagan's election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find 'clear--and long lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.' The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.
I've called this "the bastardization of the2nd Amendment."

What do you think?  Please leave a comment.


  1. The 2nd Amendment, in conjunction with the various other passages in the Constitution that deal with the militia and the Army were established on the presumption that the primary backbone of American Military power would be comprised of citizens bringing their own weapons. The original laws passed to regulate the militia defined the types of weapons that were acceptable so that the government, in time of war, would not have to provide dozens of different calibers.

    The original intent of this was to enable the US to be protected without the necessity of a large standing army for two reasons: 1) to prevent the government using the army for oppression, and 2) to frustrate attempts at pursuing military adventurism (only the army could be sent outside the US borders, the Militia could not--this restriction has lots of precedents in the courts).

    An interesting bit of reading might be researching the development of the National Guard which you and others on the gun control side always cite as the modern embodiment of the "militia". The Guard was actually developed because the (mostly Republican) military adventurism of the late 1800's and early 1900's led to fights as some militias refused to be called up and sent off to war.

    If anything deserves the term Bastardized to be applied to it, it is the Guard as the bastardized militia. We turned them into a hybrid group, every member of which is forced to be dual members of the militia and the US army so that they can be forced to take part in any foreign war any president wants. (Note, I'm not denigrating the members of the Guard--the people who did the bastardizing were the hawks in Congress and the Executive early this past century.)

    A return to this old structure would actually limit or even end the ability to engage in modern military adventurism.

    (If you are interested in looking at some of the court cases and can't find them via Google, I'd be happy to e-mail the references after digging them out of my law school notes.)

    1. It should be interesting to note that Justice Scalia's majority opinion on District of Columbia v. Heller vacated his usual originalist viewpoint, and instead interpreted "rights" guaranteed by the Second Amendment in (what he perceived as) the context of the modern day. This was a largely politically (as opposed to historically) motivated decision.

      As the opinion given in District of Columbia v. Heller is strictly a contextual interpretation of United States v. Miller, I believe that Miller can be interpreted to endow a collective State "Militia" with all arms within U.S. borders, (although it has been chosen to interpret this section to bear a different context) and therefore sanction all weapons on U.S. soil as some form of State property, to be appropriated for official use by non-individual entities.

      You have absolutely no right to control or proliferate any form of weapon. However the State, bears the compelling duty to disarm it's subjects, and such persons who are subject to the rule of law do however implicitly possess a right to be disarmed. The fundamental Right to Civilian Disarmament can be derived fro the language in the preamble (of the U.S. Constitution) sanctioning as the duty of Government to "ensure domestic tranquility", "promote the general welfare", "provide for the common defense". As there exists such a Right to Disarmament of the mere citizen as expressed by the constitution, congress bears the responsibility to adopt prohibitive statutes concerning the proliferation and possession by mere civilians, who do not convey public authority, are not entrusted with the safety of the populace, and not endowed with coercive power (therefore requiring the use of arms) over other subjects.

      Any lower (State) court cases in which the majority espouses to your deranged notion of "individual freedom" through the mass armament of the populace, that you may cite are generally a moot point, as many States at that time did not guarantee any individually applicable right to possess small arms. Cases such as Nunn v. State of Georgia, which ruled in favor of an individual "right to keep and bear Arms" achieved such a ruling by erroneously applying the Federal "right to keep and bear Arms" to apply to State activity, long before Palko v. Connecticut, before the advent of the 14th Amendment, and in total contradiction of Barron v. Baltimore.

      Perhaps you should have payed more attention.

    2. Chickadee insists that he's not E.N., but he quotes E.N. verbatim.

    3. He's certainly E.N.--this post convinced me. Therefore, he's, either brain-dead, or a troll who is parodying the other side.

      Due to the high likelihood he's a troll, I'm not going to feed him.

      If various points from arguments pop up elsewhere in other people's posts, I'll respond to them there.

    4. Although some of my argument bear a somewhat extreme tone (as do many opposing argument which call for an insurrection), they do hold some fundamental truths in regard to social order. I adopted the tone to draw out Laci, later retaining it in order to serve the purpose of entertainment when arguing with Greg, but now that there is someone (Tennesseean) worth the bother, I'm game. Eventually you will feed me. Who else here supports "the other side" demmocommie? "Jadegold"? Death-Worshiping Anonymous? Besides Mikeb, no gun control advocate is capable of making a coherent argument. Think of me as "ideological welfare" to the Statist viewpoint.

      "Chickadee" has never denied being E.N., nor have I made it much of a leap to realize such.

      Black Cap is a rather interesting moniker in the historical context. Extra Credit will be given to those (this means you Greg, Tennessean, or Laci if you still read this) who post the meaning of my alias.

    5. I already told you--it's part of the name for a cute bird, the chickadee.

    6. To all of those who fathom oppose the ideas which I espouse,
      I bestow you with three tasks:

      1. Explain why you hold the belief that there is no "right to disarmament" inherent in any civilized society, as well as implicit in the Constitution of the United States.

      2. Present me with evidence of an original intent to create an individually applicable "right to keep and bear Arms" at the Federal level.

      3. Explain the use of the moniker "Black Cap", and the historical significance related to such. The name has nothing to do with an avian creature. You are better of thinking of courtroom proceedings, and the Judicial regalia of English magistrates.

      Prove your worthiness by adorning my query with an answer befitting of your cognitive ability or lack thereof.

    7. No Homework assignments from trolls.

      Everyone else: note the desperation of the troll. We aren't clamoring to be the first to answer his previous challenge, so he reissues it and gives away the game hoping someone will note the significance of his hat.

      Do not fall for it. Don't give him the satisfaction. Make him use E.N. or one of his other personas to gratify himself on this.

    8. Tennesseean, I don't know if you think that you are fooling anyone, but your condescending remarks show your utter contempt for the common man. You assume that everyone is foolish to buy into your seditious lies about "rights" when you twist the constitution to justify your ability to carry death-dealing assault rifles. No, Tennesseean, we ain't stupid, and we ain't falling for your fast-talking lies on a history which your side has invented to serve their sick goals.

      You accuse anyone who dares argue against you as a "troll" but you fool no-one. We all can see that the real troll is the devious newcomer with imaginary credentials.

      You can't argue against facts, so you launch vicious personal attacks on the other side (E.N. and myself) instead of entering in an argument you know you will lose.

      We know what you want. You want more guns.
      more GUNS means more DEATHS.

      Contrary to what you think, most Americans aren't fools. We know the dangers of your so-called rights. And we won't be fooled by name-calling.

    9. That is an enormous pile of shit, since the Revolution was fought and won by a standing army, whipped into shape from the shiftless assholes who signed up (the NRA of the day) who were lazy, undisciplined, and hotheaded - the exact thing we have today infesting the gun shops. After they became an army, a force with discipline, they won. Had they remained a rabble, we would still be paying taxes to London.

    10. Chickadee, I've answered your question about your supposed "right to civilian disarmament" before. Go read and report back. On your second item, again, read the text. As for #3, you're not worthy. No, I'm sticking with the little tweety bird idea.

    11. Anonymous at 2:26,

      You are right to point out that the militia had to be disciplined, shaped up, and tempered, and formed into a standing army. The founders learned from this experience and discussed the lessons learned. Looking at their writings, you see that this is why the wanted the Militia to be Well regulated and trained so that it could be halfway there or more in the case it was needed.

      Also, on the topic of standing armies, I was insufficiently clear. The Founders distrusted keeping a standing army in peacetime. They enabled Congress to raise an army, but they put more limits on it and its duration than they placed on the navy because of their concern about how the Army could be used when it wasn't needed.

      Finally, you are right about the vast majority of gun folks today being somewhat undisciplined, etc. If we were to return to a militia system, it would require much more training and commitment than most people invest today.

    12. So the "rabble" that frequents gun shops today is comparable to the "rabble" which came together to fight for independence.

      Could you be any more bizarre in your twisted reckoning of American history both new and old?

    13. Mike,

      We're not talking about grievances, strength of will, etc. The comparison being made is that the gun owners today, like the colonists at the time of the founding, are not trained soldiers; rather, they are common tradesmen and professionals.

      If there is an error in my history or my reasoning in any of the above posts, please point it out and make your counter argument. I'm glad to have an open debate as long as we actually debate rather than you driving by and insulting my reasoning without pointing out any errors.

    14. Tennesseean, one of the ideas of having an armed populace is that if an army is needed, the training requirements will be lessened if the people already know how to use firearms.

    15. Greg,

      I understand that, and that would be an advantage just as it always has been. I'm just admitting that today, while we gun owners have more familiarity with the weapons, most of us haven't practiced drilling with weapons, moving in teams, hiking cross country with a fully loaded ruck, etc.

      If we returned to a well regulated militia system more like that of the founding era, as opposed to leaving the bulk of the militia unorganized, there would be a lot more training needed.

    16. In my opinion there's absolutely no reason for most civilians to have guns other than that they want them. In a free country this should be permissible, but the bar should be high as to who can qualify and "accidents" should not be tolerated.

      I don't accept any of your usual justifications. Very few of you really need them for self protection, you just think you do. The idea of keeping the federal government in line is a joke.

    17. Mike,

      As far as needing guns for self protection: When I was in College and Law school (living off campus where I could own guns), I had friends who couldn't afford to live anywhere but the bad, high crime part of town near campus. It was safe enough in daylight, but if they came to my place to study, they'd need to walk home in the dark. I walked them home and was glad to have a pistol for when I walked back alone. Thank God I never had to draw it, but there was one semester when all but two of the nights I walked a friend home, someone would be assaulted within 2 blocks of my route, within a couple hours of the time I passed through. (I knew this because the neighborhood was next to the school and so full of students that they reported every mugging, carjacking, and home invasion. This was the semester after the Virginia Tech shooting. The city finally put enough patrols in the neighborhood to clean it up by the time I graduated.)

      Since then, where I now live, the threats to me are more from feral dogs and coyotes. I have been in a situation where I had my hand on the gun, but again, thankfully, didn't have to use it because I intimidated the pitbull that was sneaking up on me enough that it gave up at the last moment (about 5 feet from me).

      I also have need of them as a tool to protect livestock from predators.

      Finally, as for the keeping the government in line--why do you say that idea is a joke? Because it isn't necessary at the moment? Or because you don't think it could ever be a necessity? Or because you don't think it could be effective?

    18. You sound like you have good reasons to carry a gun.

      "Finally, as for the keeping the government in line--why do you say that idea is a joke? Because it isn't necessary at the moment? Or because you don't think it could ever be a necessity? Or because you don't think it could be effective?"

      The second, and the third if we want to talk hypothetically.

    19. Mike,

      Most of us who carry a handgun could articulate reasons like I have. It's not that we live especially dangerous lives, but that we have evaluated the real dangers that most human beings face and decided that, in our estimation, carrying a gun is worth the extra aggravation, responsibility, etc. (Including the responsibility to practice to remain proficient, to store the gun safely, or keep it on our person so that it is in our control, etc.)

      On the hypothetical topic, consider the hysteria following 9/11. Anyone who looked Arab was afraid for a short time. Thankfully, for all his flaws, President Bush did try to fight the prejudice and attempts at violence, and things calmed down.

      However, imagine if there was a nuclear attack in a couple years. The Republican party is continuing to fade and fracture, and in post nuclear hysteria, here comes a new party with fascist leanings, wanting to offer a "final solution" to the "Muslim problem."

      The possibility of this or some other scenario is greater than zero, and given our political polarization, I'm afraid that it's a lot greater than zero.

      On the topic of the efficacy of such a fight, I would just point to Lybia and Syria. Private guns (both legal and illegal) were used early on. Later, they captured weapons and were joined by soldiers whose consciences didn't allow them to fight for the government. These brought weapons and equipment, and reduced the government's ability to utilize all its weaponry.

      A lot can be done by people with small arms. Would the results of such a fight be bloody and horrifying? Yes. War always is, and civil war is especially so. This is why you don't open that box if there is another option.

      On the flip side of that coin, I think the presence of guns in civilian hands would make our hypothetical neo-fascists moderate their policies to try to avoid such a war, giving us the time and opportunity to hopefully regain our senses and vote them out without having to ever fire a shot.

      I understand that you may still think that the probability is too low compared to other dangers from guns, but please think about what I've read and tell me--is it not at least Possible.

    20. I was with you about the possible nuclear attack someday and the aftermath, but here's where you lost me.

      "On the topic of the efficacy of such a fight, I would just point to Lybia and Syria."

      The US cannot be compared to those places, not by a million miles.

  2. Read the text. "The right of the people to keep and bear arms shall not be infringed." The control freaks may yammer all they want about militias, but the right is identified as belonging to the people. I guess it takes special wisdom to explain how black is white and no means yes.

    1. Greg, your mind isn't warped enough if you can't see that the 2nd amendment in the BILL OF RIGHTS is actually the gun control amendment. ;)

      orlin sellers

    2. The attempt by gun controllers to distract with the militia clause is as laughable as the constant use of the preamble to justify everything from ObamaCare to Gun Control. First clause of the Second Amendment tells Why the People must be protected in their right--it doesn't limit the right to a collective one resting int he State.

      Similarly, when the Preamble talks about ensuring domestic tranquility and providing for the general welfare, it is not granting ANY powers to the government--it is simply saying WHY the following enumerated powers are being granted.

    3. Greg, for a professional grammar nazi, you fail to notice that" Arms", as well as "State" and "Militia" are capitalized. If you quote your beloved amendment, at least have the decency to get the text right!

    4. Chickadee, I'm not a Nazi in any form. I'm not the one calling for the government to insert itself into the rights of the citizens. But if you read much of writing from the period, you'll see that people capitalized many nouns without any special significance.

    5. You are actually worse than a fascist. You are an anarchist and a destroyer of our civilization.

      What is desperately needed today is the destruction of the gun culture and it's replacement of normal relations with stroking and worshipping guns. It's disgusting.

    6. Anonymous (the one who coined the term "gunsuck", I presume),

      What do you think of the Right to Civilian Disarmament, which is implicit to the goal of any civilized society, as well as the Constitution of the United States?

    7. Like all double-talking gun-rights fanatics, Greg leaves out the first four words whenever talking about the 2A.

    8. Umm, offered an explanation of those words above--right under Greg's post. So did the Supreme Court in Heller.

      If you disagree, Make an argument rather than proof by vigorous assertion and insult.

    9. Tennesseean, I and others have told him this many times to no avail. By the way, I used to live in the Nashville area--lots of beautiful country around and enough of the big city to satisfy any part of that I'd want.

    10. That is a nice area, but I like my little corner better. I'm from the northeastern corner--a hillbilly from the mountains. Flat land and concrete makes me Nervous ;)

    11. I know how you feel. I spent the first fifteen years of my life across the border near Ashville, NC.

    12. Tennesseean, You're definitely my favorite hillbilly yet.

  3. All rights are individual rights, there was no re-interpretation.

  4. US Code 10 Section 311 Militia act we are the "People" The "People are the Militia.'

    1. Gun rights advocates fail to realize that "the People" is a very collective term.

    2. Could it be because "the people" are mentioned in other amendments where it's clear that the right is to be exercised one at a time?