4. There is NO
SUCH THING as a right to bear arms, in the same sense that there is NO SUCH
THING as an inalienable right, more generally.
This argument addresses
an extraordinarily basic issue in political theory, going back in modern times
to the likes of Hobbes, Locke, and the Seventeenth and Eighteenth century
conflicts formative to the Anglo-American developments of constitutional
democracy. In so many words, I
interpret the notion of rights in absolute terms. At least abstractly, so did Jefferson, if we
take the Declaration of Independence at face value. To suggest that any right is inalienable implies
ontologically (i.e. as a matter of universal necessity) that the
claimant to such a right can never, under any circumstances or
conditions, be denied its exercise, and that any material circumstance that
could conceivably vitiate the right at one moment would permanently
compromise its status as a right.
If I claim to have an inalienable right to bear arms, then
no circumstance, not even my own lack of possession or ownership of a firearm,
should prohibit me from claiming my right, even if it means that someone should
be legally compelled, at a moment’s notice, to produce a firearm for me
to bear in the absence of my ability to purchase one (in the same way that
under the Sixth Amendment the public must provide a defendant with legal
counsel in cases involving imprisonment if the defendant cannot afford
counsel). This is clearly not
what the “right” to bear arms in Second Amendment means, any more than it
describes the “right” to free speech in the First Amendment. In my sense, there is no right to bear arms
in the U.S. Constitution, any more than there is a right to free speech, a
right to assemble and petition the government, a right to worship the faith of
one’s choice, a right to trial by jury of one’s peers, a right to be free from
unreasonable searches and seizures of one’s person and property by the police,
a right to be provided counsel as a defendant in a criminal case, a right to
privacy in reproductive decisions, or a right to life for the born or
unborn. Further, neither the U.S.
Constitution nor any other pieces of paper constituting the existence of a
government of any kind through the collective consent, explicit or implied, of
a polity can confer inalienable rights that do not already exist as a
matter of absolute and universal necessity.
If we have rights, then it is because we’ve ALWAYS had rights,
with or without the existence of a government supposedly put in place to
protect them (hint: if they need government protection, then they’re not
rights!).
Contemporary American society is replete with persons and
groups demanding the recognition of rights (animal rights, hunters’ rights,
rights to clean air, rights to pollute by burning fossil fuels, etc.) In most cases, such demands are probably
deserving of attention as serious matters of public concern for deliberation by
democratically elected governments. On
the other hand, we need to place such demands in a perspective divorced from
the moral and rhetorical tools associated with their
affirmation. Rights are absolutes in a
world where there can be no absolutes.
They demand the certainty that they can always be
exercised, but, as numerous contemporary disciples of J.M. Keynes have
suggested (see Davidson, 1991), we live in a world of fundamental
uncertainty.
Dispensing with the notion that there could ever
be a “right” to bear arms, what exactly is the Second Amendment of the U.S.
Constitution all about and, for that matter, in general, what is the purpose of
the U.S. Constitution and the Bill of Rights (in my opinion
mislabeled!)? Like any other
constitution on earth, the U.S. Constitution of 1789 establishes a government
under the particular conditions outlined in its provisions, no more, no
less. It tells the federal government,
and especially the Congress, what it can do and what it cannot do (or should
not do). The latter purposes make up
the focus of the Bill of Rights (i.e. the first ten amendments). When the First Amendment says that there
will be no law “abridging the freedom of speech,” it places a boundary on the
authority of Congress, saying that Congress should never pass
laws that obstruct the ability citizens to speak their minds on whatever issue
they find pertinent to social life in a free country by whatever means they
deem essential to their expression.
When the Second Amendment says that the “right of the people to keep and
bear arms shall not be infringed,” it, likewise, means that Congress should
never pass laws to obstruct the possession of firearms. The Constitution, also, incidentally but
purposefully, establishes a set of relationships between the federal
government, state governments (e.g. through the Fourteenth Amendment), and
citizens.
The
context here is key. Whether or not the
drafters of the Second Amendment called it a right to bear arms, it
exists, in its constitutional context, as a liberty/permission to bear
arms free of Congressional interference. These are promises, supported by the (historically
usurped!) authority of the federal judiciary in review of statutory law, that
Congress will respect the liberty/permission of citizens to undertake certain
acts without the interference of the federal government.
Being
promises, they are not absolutes – promises do sometimes
get broken when necessity sets in.
During the high tide of McCarthyism in the 1950s, the federal judiciary,
under the pressure of public opinion, concluded, in deference to Congress, that
freedom of assembly under the First Amendment did not extend to membership in
the Communist Party of the United States (see Dennis v. U.S., 341 U.S.
494 (1951)), a conclusion it recanted in 1967 (see U.S. v. Robel,
389 U.S. 258 (1967)). If, in doing so,
the U.S. Supreme Court initially did an injustice to the promise that Congress
would not abridge the right of citizens to peaceably assemble in order to
redress grievances to their government (and that they would not allow Congress
to do so), the same indictment could be leveled against Congress for passing
laws like the Smith Act (officially the Alien Registration Act of 1940) in the
first place, which set criminal penalties for merely advocating the overthrow
of the U.S. government. Founders like
Jefferson, who played a very active role in the violent overthrow of the
government under whose authority he was born, probably would have seen this as
a violation of the very promise that he had put his life on the line to defend! Lest we think otherwise, we have Jefferson’s
comments to William Stephens Smith on Shay’s Rebellion (“The tree of liberty
must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure” (1787)).
All
this said, in theory, no obvious reason exists why Congress, supported
by its constitutional authority under its Article I enumerated power to
regulate interstate commerce, could not craft legislation barring the sale in
interstate commerce of an expansive range of automatic rifles, handguns, and
other firearms under a selective set of circumstances of Congress’
determination, such that Congress’ exercise of regulatory authority might not
be construed by the federal judiciary as excessively broad. In actuality, the currently
dysfunctional character of Congress (addressed in the previous entry) and the
present preference for a liberal interpretation of the Second Amendment by the
Roberts Court prevents such a set of circumstances from happening.
5. The Second Amendment is CURRENTLY subject to a liberal
judicial interpretation and applicable, through selective
incorporation, against state regulation.
Approaching the issue of
constitutional protection from the opposite direction as the previous point,
contemporary Second Amendment jurisprudence favors gun “rights” against
interference by both the federal and state governments. Readings on constitutional provisions like
the Second Amendment revolve around judicial precedence, and, in this regard,
there is a long history of divergent readings on what the Second Amendment
protection of the “right of the people to keep and bear arms” actually
means. For much of U.S. Constitutional
history, judges and justices placed an emphasis on the open phrase of the
amendment “A well regulated militia being necessary to the security of a free
state” to argue that the amendment specifically resides in the Bill of Rights
as a practical feature to enable members of the militia to hone their
marksmanship skills during times of peace.
There are good reasons why this might have been the Founders’ intent,
given that militias in the American colonies had served as civil defense forces
on the frontier from at least the time of the Pequot War in New England
(1637-38). The Supreme Court defended
this reading of the Second Amendment in U.S. v. Miller (307 U.S. 174
(1939)), where it declared that ownership or possession of sawed-off shotguns,
not being standard military weapons usable by a militia, was not protected
under the Second Amendment.
If it was the Founders’ intent that the Second Amendment
be strictly understood as applying to the regulation of militia (i.e. to the
National Guard), then it absolutely makes sense to restrict the application of
the Second Amendment to, say, National Guardsmen and Reservists who might be
called upon to defend the country. The
problem is that we cannot know exactly what the intent of the Founders’ was,
even from what they wrote (to say nothing about differences of opinion between
the “Founders”), and even if we could, there are a lot of realities that we
live with today that the Founders could never have faced or even
understood. Interpreting and defining
what the Constitution says is not a matter of determining what the Founders
would have wanted but what is pertinent to the functioning of the federal
government (and the state governments) today.
Even if the courts operate on the basis of precedence, moreover, there
is no precedence that cannot be overthrown under the right
circumstances. The Constitution is not
made of stone – it is a plastic document subject to change.
The Roberts Court has been extremely open to changing
received meanings of the Second Amendment.
In District of Columbia v. Heller (554 U.S. 570 (2008)), it
invalidated a ban on handguns established by Congress for the federal enclave
of the District of Columbia on the principle that the Second Amendment includes
the right of individuals to keep and bear arms in order to protect their
lives and property. It does make room
for laws prohibiting the mentally ill or felons from owning firearms and allows
certain conditions concerning, say, concealed weapons. However, this reading is broad enough to
extend the privilege of handgun ownership against almost any legislative
challenge at the federal level.
State
laws have always been another matter.
In and of itself, the U.S. Constitution and the Bill of Rights does not
apply to state governments and never has.
However, the Fourteenth Amendment specifically does apply to the actions
of state governments and, as a matter of judicial interpretation, the federal
judiciary has selectively incorporated certain protections applicable
against the federal government through the Bill of Rights against actions by
state governments through the due process clause and other provisions of the
Fourteenth Amendment. In U.S. v.
Cruikshank (92 U.S. 542 (1876)), the Supreme Court ruled that the
protections of the Second Amendment did not subsequently apply to the
states, through the Fourteenth Amendment.
In the aftermath of Heller, the Roberts Court has thrown out this
precedence through McDonald v. Chicago (561 U.S. ___ (2010)), when it
ruled that the Second Amendment protections extended to individuals against
federal gun control initiatives by Heller were incorporated against
state initiatives through the due process clause of the Fourteenth
Amendment. Again, this ruling is
sufficiently broad to overthrow just about any gun control initiative by any
state or municipality in the U.S. It
opens up an important door for the NRA and any other organization that wants to
pick apart the patchwork of gun regulation in the U.S. by appealing convictions
under gun laws that will presumably be found unconstitutional if they find
their way before either a state or federal appeals court – this is a real
bonanza for lawyers on both sides of the gun control debate! On the other hand, it reinforces a general
theme of this extended rant – the legislative road to control gun violence is, if
only at the present time, closed to both state legislatures and
Congress. All talk about assault
weapons bans, regulations of magazine size, required gun-locks, and
requirements of gun-ownership insurance policies is, in all likelihood, a complete
waste of time because any or all of these provisions is unlikely to pass
Constitutional muster with the Roberts Court.
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