Monday, January 21, 2013

Episode 3: Twenty Seven Words

If you haven't read the IntroductionEpisode 1 or Episode 2  you should do so before reading below.
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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.
- The Second Amendment to the U.S. Constitution
At the heart of the debate on firearms is the second amendment to the U.S. Constitution. What do we know about these twenty seven words; why were they written?

The short answer is, there is no specific information that explains the rationale for the amendment.

One popular theory, especially in pro-gun circles, is that the purpose of the second amendment is to arm citizenry to protect them from a tyrannical federal government. There are also many quotes from our founding fathers that directly support this theory. Below is one from none other than hero of the revolution and the first President of these United States, George Washington.

Hold on. It's 118 words long and pure fiction[1] written by some pro-gun person, we shouldn't read it. Let's move on.

Here's a better one anyway from Thomas Jefferson:
The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
While Jefferson is no Hamilton or Adams, he does have a direct style of communication.

Oh, wait. That's fiction too [1]. Again, written by some person who, unsatisfied with the clarity of the amendment itself, decided to help it along. Of course, the Second Amendment Foundation, a gun advocacy group, posits that these may have been written by gun control advocates to poison the well; conspiracies within conspiracies.

In fact, there's no written proof that the the purpose of the second amendment is to protect us from a tyrannical government. Nobody wrote words to that effect.

That's the problem with our Constitution. It's as if is was written in some ancient tongue and needs to be translated and interpreted to be understood. Of course, it was written in the ancient tongue of another time and it does need to be translated and understood. And that's how we've gotten 224 years of lawyers fees.

So what do we know?

First, we know about the historical context. The U.S. Constitution was written to replace the Articles of Confederation. After the Revolutionary War, the country that was deeply in debt [2] and had a token standing army.[3]  The Articles of Confederation gave all the power to the states and the federal government had little authority.

When rebellions over taxes to pay war debts started, as it did in the Shay's Rebellion in western Massachusetts, the state government had to privately fund a militia of three thousand citizens to go put it down. The states were pretty pissed about this and as interstate issues continued to arise it became pretty clear that something needed to be done to replace the Articles. Hence the Constitutional Congress and eventually the U.S. Constitution including the Bill of Rights and it's trusty second amendment.[4]

The Shay's incident illustrated both the handiness of an armed citizenry as well as demonstrated the need for a stronger central government. So maybe the second amendment is both about an armed citizenry for the protection of the central state as well as an armed citizenry for the defense of individual liberty.

Or maybe I'm just guessing.

Which I am.

What else do we know? Let's look at the Federalist Papers.[5]

As you'll recall from sixth grade history these were a series of eighty-five anonymous essays[6] written during the period of the Constitution's ratification to convince citizens that ratification was in their interests.
It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.
Apparently, choosing a government by reflection and choice over accident and force is a good idea [7][8].

Within the Federalist Papers one finds Article 84 where Alexander Hamilton argues against the need for a Bill of Rights. If only that could have prevailed our dialogue today on the second amendment would be moot.

Relevant to our topic at hand, the Federalist Papers speak of the need for a militia and rights of self defense and speak to the need to defend against usurpation of power both at the state and federal level. Complex stuff with no clear language that says "Everybody gets any kind of gun they want." or "the second amendment is all about protecting us from our government" or even, "the government gets to decide what arms the militias or people are allowed to have".

Case law over time has tried to translate, interpret and clarify what this amendment means. Of course, case law is also of little help because it seems to wax and wane. I won't bore you with the case citations [9], but suffice to say there has been a long legal history of precedent being set both ways -- both for expanded and restricted gun ownership. Lately the Supreme Court's zig towards expanded interpretation of the Constitution is contrary to almost seventy years of the courts going in the other direction. But that's what makes this so exciting and interesting.[10]

Here's what I've been able to divine with some level of certainty about the second amendment.
  1. The second amendment is an individual right. We get to keep arms as well as bring them along to our militia drills.
  2. Laws can be made to restrict that right (e.g. the National Firearms Act at the federal level and myriad state and local laws such as Concealed Carry laws and Assault Weapons Bans) but there are limits that are determined on a case-by-case basis.
  3. Beyond that not much.
Interpretation of the second amendment is going to continue to be thorny. Short of rewriting the thing it seems that we are destined to write laws and let the courts decide whether those laws fit the second amendment mold or not. And that determination will meander between the pro and anti viewpoint based upon the composition of the court.

I suppose there's one thing that can be said. Neither side in the gun debate can definitively claim that the second amendment supports one position or the other. If they do, they're being disingenuous[12].

Read the next post in the series

Notes
1 - Dubunked here and here.
2- The Revolutionary War cost the US $101 million in 1776 currency (around $2.5 billion in today's dollars) and left the United States with $75M in debt.
3 - The Secretary of War tried to scrape together 100 troops to march on Shay's rebels and couldn't get any takers.
4- Of course there were concerns about this new constitution would infringe on rights though as Alexander Hamilton pointed out, the Constitution did not include any surrendering of rights so protections of rights, such as in the Bill of Rights, was unnecessary. But Madison and a bunch of States Rights guys won the day and now we're stuck with all this Constitutional arguing.
5 - Terribly dry stuff also written in that same ancient tongue as the second amendment. Does anyone really read this stuff?
6 - It turns out it was Alexander Hamilton, John Jay and James Madison and not some Roman dude named Publius.
7 - See how I took that paragraph of ancient tongue and simplified it down to a more modern equivalent comprised of 15 words. Maybe we need to rewrite the second amendment in a similar fashion.
8 - We could use a little more reflection and choice in this whole discussion on guns.
9 - United States v Miller, District of Columbia v Heller, etc....
10 - Kind of like Tenkara. But different.
11- Isn't that just a fancy way of saying they're lying? Yes, it is.
12 - See 11

8 comments:

  1. I appreciate the research that you have put in to this and the extremely well articulated presentation of your findings more than you can imagine. Thank you VERY much. I will be referring to these pieces among my peers to support my deeply held beliefs on this critical argument.

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    1. Thanks James. It's been an interesting refresher course in social studies. One of the things that is most striking in this conversation is both the lack of fact about the causes of gun violence (discussed yesterday) and the inability of anyone to put second amendment rights in the context of all the other natural rights listed in the Bill of Rights and the U.S. Constitution. The Second Amendment does not exist on its own. It is part of a system of rights. No one trumps the others.

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  2. I dont agree... I look at the history of man and see that it was the people who were armed that had, have and obtained freedom and liberty. Being armed has thwarted want and greed of man from obtaining his desires. Man trying to obtain his wants at the expense of other men and feeding his desire and ego has been happening since the begining of mankind. We all know this. Looking at history teaches us. The words we use have come from the need to describe things around us; War, Greed, Kill, Want, King, Ruler, Slave, Tyrant, Liberty, Freedom, Genocide, Peasant, Upper Class, Slum, Defend, Protect, Equallity, Elected, Representitive, Communism, Socialism, Democracy, Country. We the fortunate poeple of this country havent been exposed to these things as most other men have for 3,000 + years of human history. Lets not be ignorant or unaware of mans history.
    I wish guns never existed... but I dont live in that world with those beings.
    If they didnt, 99.8.percent of us would be living and working on Native Indian Land with a Green Card and following the Laws of Nature and respecting Mother Earth. Remember, White man was the original tyrant invader with guns. We all need to be aware and look at the big picture of whats going on.

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  3. But it is also people who are armed who have been the greatest beasts we have seen in history. Surely there is a balance. What I worry most about is not that there are guns in our society but the uses to which those weapons are put. In recent weeks, some of the most ardent protectors of their second amendment rights are quick to threaten violence; to shirk the rule of law. Alex Jones put on quite the show and one doesn't have to look too far to find others of his ilk. No one of the natural rights listed in the Bill of Rights is superior to the others, unless, it seems, you have a gun and the second amendment at your back. I'd like your thoughts after you read tomorrow's post.

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  4. Very minor point, and totally beside the point you're making (I'm still reading...sorry for talking before I'm finished!).

    I don't agree with footnote 4, i.e. that we can "thank" Madison for the Bill of Rights. My understanding of the history of the BoR is that, in fact, he was quite opposed to the idea, and for the reasons you say. He didn't see it necessary, and in fact worried that a bill of rights would look like an enumerated list of the ONLY rights we had...and hence folks might be prone to reading it, find something missing, and then claim that since it was missing, it was not a right (and, in fact, this happens a lot: I have heard it said often that gay marriage isn't a right because it's not in the Constitution). And more, my understanding is that it was because of this fear that the ninth amendment was stuck in there: i.e. "Hey, just because it's not listed doesn't mean it's not a right!" Lastly, my understanding is that Madison eventually pushed for the inclusion of the BoR only because others particularly fearful of a powerful federal government insisted upon it, and Madison like most (I mean some...I mean, none now but some before) politicians understood compromise is necessary.

    I could be all wrong about this. In any case, back to reading the post. Sorry.

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  5. TJ - I may have gotten all those guys a bit mixed up so I'll have to go sort it out. I thought the position you described perfectly was Hamilton's position. So many dead Presidents to keep track of, so little time.

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  6. In the light of recent events, and the ridiculous stance of the NRA, your proposal at number 7 deserves to be more than a footnote.

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