Sunday, February 10, 2013

Gun Violence and Gun Control II


 

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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