Wednesday, April 20, 2011

. . .the right of the people to keep and bear Arms. . .

It seems that over a week has passed since the Ragin' Man in Cajun Land asked (and then provided his answer to) the question "what does the 2nd Amendment really say?" Please, take a minute, check it out, maybe let him know what you think.  And, for those of you who haven't been paying attention, the Second Amendment, in its entirety, states, "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."

Well, Ragin' Man, here's my two cents: I’m jealous that you covered this topic in detail before I have. This is one that has been on my back burner for awhile, because it is a topic dear to me, and most people have kneejerk reactions that either miss the point or just cater to whatever side they support.

I would disagree with you, however, on a few important points –

If anything, a simple understanding of the Bill of Rights holds it to be a guideline of protections afforded to the states and the people from the power of the federal government (which is why it ends with the “catchall” Tenth Amendment - "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."), and the question that D.C. v. Heller was specifically pertaining to is whether in federal enclaves (in this case, the District of Columbia), does the (federal) government (the ban was passed by the Council of the District of Columbia, but as a federal district, is subject to the control of Congress) have the ability to restrict ownership of an entire class of firearm that is commonly used for traditionally lawful purposes? The answer is no. It’s definitely splitting hairs (but isn’t that really what the Supreme Court is for? If the answer was blatantly obvious, it wouldn’t have made it that far), but the federal government (under the guise of the DC Council) prohibiting personal firearm ownership is exactly what the Second Amendment exists to prevent.

Now, the extension of this decision to the state and/or local level may be a little more applicable toward your “free state”/”well regulated militia” argument. Two years after your boy Antonin Scalia affirmed Barack Obama’s right to keep a pistol in his nightstand in the White House, the question arose in McDonald v. Chicago, does Obama have the right to keep a pistol in his home in Chicago? While the original text of the Second Amendment regards the “well regulated militia” of the “free State,” does this mean that the state, then, would have the power to restrict or prohibit certain firearm ownership of an entire class of firearm that is commonly used for traditionally lawful purposes? Well, yes, that could be one way to look at it. So why does the court’s decision in McDonald v. Chicago say otherwise? Did they forget to eat their Wheaties that day? No, the Fourteenth Amendment opens the way for the incorporation of the Bill of Rights to apply to the states as well as the federal government. For example, the First Amendment states that ”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,“ but the Fourteenth Amendment is understood to prevent the state of Illinois from requiring its citizens to practice Scientology. Likewise, other rights, guaranteed by the Bill of Rights, that are “fundamental” by being “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions,” are protected from state and local infringement, as well as federal infringement. I would argue that along with the freedom of speech and religion, the right and the ability to overthrow a tyrannical government, whether it is federal, state, or local, is one of the most basic and deeply rooted American traditions.

I think that it is important to understand the use of the term “well regulated” does not necessarily mean subject to the regulations of the state, but rather well trained, disciplined, and/or equipped. In fact, in the Heller decision, the Supreme Court indicated that “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.” If anything, I would say that rather than telling me what weapons I can’t own, the Constitution says that the State should provide me with a weapon, and regularly train me in its use! Now that’s a welfare State I can respect! Also, in Federalist No. 29, author Alexander Hamilton expounds a bit on the use of the term “regulated” in regards to military preparedness and effectiveness, rather than simply meaning subject to regulation.

Before you think I overlooked one of your points, I did see your reference to the prefatory clause ("A well regulated Militia, being necessary to the security of a free State"), and while it does announce background and a purpose, it doesn't actually limit the scope of the operative clause ("the right of the people to keep and bear Arms, shall not be infringed").

Additionally, every other time “right of the people” is mentioned in the Bill of Rights, the phrase is understood to be referring to an absolute individual right, as opposed to a collective right (think of the people as opposed to the people of the militia). For example, the Fourth Amendment protects “the right of the people to be secure . . . against unreasonable searches and seizures.” I think it is safe to assume that “the people” the Fourth Amendment refers to is everybody, not just a specific class of people, say non-Italians (we need to watch out for the mafia!) or non-Catholics (the papacy is a front for a criminal empire!). Likewise, the First Amendment protects “the right of the people peaceably to assemble,” and no matter how abhorrent any particular group’s message might be, no one person or group is entitled to any more or any less than an absolute right to peaceable assembly. So, I would say that not only are the people of the militia protected in their right to keep and bear arms, all of the people are.

In fact, I think that the one true area that can be called into question is the term “Arms.” The people are secure in their right to keep and bear arms. Sweet. What exactly does this mean? That, to me, is the crux of the debate (or at least, should be the crux of the debate). If a well-regulated militia, being of vital importance to the security of a free state, is so important that the people are secure in their right to bear arms, and the militia exists as a sort of “emergency reserve” for the Army, doesn’t logic dictate that the people should have (and presumably be proficient with) the arms of the day? No, this doesn’t mean that Granny needs a grenade launcher, or that your auntie needs an atom bomb.  But don't you think that individual weapons carried by soldiers or officers would fall in that realm?

And last, you start off by saying that the right wing of the country has been moving to abolish the reading of the Second Amendment.  I imagine that it has to do with your view on the interpretation of what a "well regulated Militia" means.  Obviously, if I haven't dissuaded you from that interpretation, not only were you not listening to me hard enough, but I probably haven't also dissuaded you from your view of the right wing conspiracy to alter the reading of the Second Amendment.  So, since I know you detest hypocrisy to the very fiber of your being, I ask you this - don't you find it interesting with the traditional left wing/right wing divide that the left wing isn't trying to expand the protection of the right to bear arms?  After all, if the government says I can't wear blue on Tuesdays, I call the ACLU because it violates my freedom of expression.  If the government doesn't let me be Mormon, I call the ACLU because it violates my freedom of religion.  If the police search my house with no cause and find my stash of meth and haul me off to jail, I call the ACLU because it violates my right against unreasonable search and seizure.  Hell, I'm pretty sure that if General Martin Dempsey knocked on my door and told me he was gonna be staying with me for a while, I could probably get help from the ACLU because it violates my Third Amendment right against the quartering of soldiers.  (and yes, I know that the ACLU isn't the standard bearer for the left, but you get my point)  But when I, a law abiding citizen, am prohibited from purchasing or merely owning an entire class of firearm, and I call up the ACLU, what happens?  They give me the finger.  Why is that the one they take a pass on?


  1. Nice rebuttal to Ragin's commentary. Personally, to address the ACLU issue, yes they will uphold the Constitution's literal meanings, but at the same time, may pick and choose and battles they know it can win. The 2nd amendment issue may be interpreted in various ways (obviously) and decisions can go either way pending on how one perceives the amendment (not necessarily from a biased standpoint, but simply how they interpret the amendment), and may not be a guaranteed win in a court case, as opposed to unreasonable search court cases. This is a great, well-thought out post though, I approve.

  2. I totally agree! Seriously!. On the lighter side, i remembered the sketch from family guy about this.

  3. wow, very nice post, great read.

  4. I had to do the same thing because my post was too long.

  5. I'm glad (and a little surprised) to see this topic discussed in civil language and appropriate detail on the internet.

  6. Something I forgot to put in about the Right Wing rewriting of the law is Citizens United. In his concurring opinion on why they should even listen to the facial challenge from the previous case (Austin v Michigan Chamber of Commerce)Justice Roberts cited the dissenting opinions of 3 of the justices still on the court and pointed out that if 4 people had dissented the decision would have been different. This court is willing to use the "If a frog had wings" to overturn everything, and will.