12 January 2011


Previously, I've looked at two issues raised by the Tucson massacre: the overheated rhetoric of violence coming from the right wing of this country and the paltry support system in this country (government and insurance, not actual mental health care providers) for mental health care. Today, I want to advance along a third salient.

All the vitriolic, inciteful, right-wing 'bullets over ballots' rhetoric in the world can rattle around in the confused mind of practically any mentally ill person anywhere with no apparent public consequences (other than, say, further confusion). There are good and effective medications to help these folks properly process this information and resist the violent impulses incited by it. But when that person has little or no access to appropriate clinical care and ready access to assault weapons, extended magazines, and $0.22 bullets, bad stuff is going to happen.

As a legal matter, the Second Amendment to the U.S. Constitution provides: "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." There has been an enormous amount of litigation and public policy argument about the meaning and application of this provision. Originalists like Supreme Court Justices Scalia and Thomas should take the position that the use of such words as 'militia', 'security', 'free State', 'the People' make it abundantly clear that the Second Amendment allows for individual States to keep a standing militia, such as the National Guard, to protect themselves against incursion from any other State or country.

Recall, many during the founding of this nation believed that each State was a separate nation unto itself and that the individual States came together in a loose confederation for only limited ends. It took the Civil War, 90 years later, to disabuse the remnant primarily in the South of this belief: the Union won against the Confederacy. There is nothing in the plain language or text of the Second Amendment about the right of an individual person to have easy access to arms of any sort. Of course, because these so-called Originalists or Constitutional Fundamentalists (who believe that the Constitution is essentially a 'dead letter' and that its meaning is now and for all time limited to what it meant to the framers) are pushing an avowedly conservative ideology, they disingenuously and fraudulently ignore this glaring contradiction.

To repeat: in the Second Amendment, the right to keep and bear arms is granted to individual States for the purpose of maintaining well-regulated militias. Thus, if Great Britain in 1799 decided to invade New Hampshire, New Hampshire could call up its militia to defend itself. Of course, Massachusetts and Vermont and any of the other free States could send their militias to come to its defense if they chose, but New Hampshire should be in the position of being able to defend itself. This sort of thing was a very real threat at the time.

It is another question entirely as to how the individual States organized their militias. A State could make every male over the age of thirteen a de facto member of the militia, if it so chose, and allow and even require each such individual person to keep and bear arms. And it could call up every one of these individuals for militia service, requiring them to deploy their arms in defense of the State, if its security was threatened. This is not Constitutional, however; it is political. And nowadays the point is moot, because each State maintains a formally organized National Guard which it deploys in emergencies and which, from time to time, is called upon in a reserve capacity for the United States military.

The Second Amendment of the U.S. Constitution has nothing to do with hunting, protecting private property against intruders, or private militias. It has nothing to do with the right of a Jared Loughner to walk into a WalMart and purchase 100 rounds of ammunition for $22.00. It has nothing to do with a Jared Loughner being allowed to purchase and deploy an extended magazine of ammunition in a semi-automatic pistol that fires three rounds per second. These are political rights, not Constitutional rights. And in this country, there is no political will to limit or even rationally regulate them despite the prevalence of these massacres.

1 comment:

Frances Madeson said...

Guns are quaint relics against State power at this point; they have drones and microwave weaponry that can explode the sturdiest among us and burn our skin at 135 degrees, effectively flaying us. Even Daniel Boone couldn't shoot a microwave, especially with his coonskin hat and forearms ablaze.

I'm attending a gun show this weekend (a first, I assure you) to try and learn why people want to hang on to their firearms. I suspect people are worried about protein and food supplies and safety, and also self-defense against intruders as economics become more and more desperate.

We're down the rabbit hole, Jim. You're an awesome lawyer and everything you wrote in Fraud is truer than true. But also, like the 2nd amendment itself, probably irrelevant.