Flyboy
Member
All,
I just read a truly inspired post on how the Second Amendment ought to be read, and I wanted to share it here. Posting in Legal because it's about legal theory; please feel free to move it if appropriate. I apologize for the length, but I assure you it's well worth the time to read.
In my opinion, this is how we ought to be doing things (not just on the firearms front, either: as you read, consider how we executed the prohibition on alcohol vs. how we're handling the prohibition of drugs). The emphasis is my own; it is (in my view) the most important part of the piece, and it explains why absolutism is not only not a bad thing, but actually a very good thing, using the old canard we've all read about nuclear weapons and such.
I just read a truly inspired post on how the Second Amendment ought to be read, and I wanted to share it here. Posting in Legal because it's about legal theory; please feel free to move it if appropriate. I apologize for the length, but I assure you it's well worth the time to read.
In my opinion, this is how we ought to be doing things (not just on the firearms front, either: as you read, consider how we executed the prohibition on alcohol vs. how we're handling the prohibition of drugs). The emphasis is my own; it is (in my view) the most important part of the piece, and it explains why absolutism is not only not a bad thing, but actually a very good thing, using the old canard we've all read about nuclear weapons and such.
http://reason.com/blog/show/130133.html#comments
Ben1 | November 18, 2008, 8:59am | #
The USSC did the right thing. Just barely. Mostly by accident. I say this because while it is clear that the four judges (of nine total) who dissented haven’t even got a ghost of a clue as to what the constitution is, much less what it says, there is more here to astonish and perturb those who actually read the decision of the majority of five. They don’t know what they’re doing either; that, or they are involved in a conspiracy against the citizens of the United States.
I’ll start by quoting the 2nd amendment in its entirety, and then I’ll analyze it. Then I’ll discuss the USSC majority and minority positions.
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.
First, there is the prefatory or explicatory phrase: “A well regulated Militia, being necessary to the security of a free State”; this phrase serves to provide a rationale for what follows. It doesn’t instruct the government to do anything, it simply explains something the framers thought would help readers understand why the operative phrase to come says what it does.
Even so, let’s look at it. Militia meant all able bodied males of a reasonable age, such that they could rationally be expected to fight. It does not mean “national guard”, nor does it mean “army” or “state militia.” If you doubt me, look it up. I’ll wait.
Well regulated meant consistent, and in this specific phrase, it meant consistently armed. Laws on the books at that time went so far as to specify exactly what that meant; so many bullets, so much powder in a container suitable to keep it dry, etc.
The “security of a free state” means either to retain the state of being free, or it means to retain a political state, in which freedom is secure. I admit that I have no particular preference in the reading; they could have meant either one. They both seem to amount to the same thing to me.
So basically what they were saying here in modern English is that consistently armed fighting people are needed in order to retain freedom. Once we unveil the somewhat obfuscatory archaic English, it makes perfect sense. Of course such people would be needed.
Regardless, again, it’s not an instruction to the government. It’s just an explanation.
Now we come to the actual instruction, the operative phrase: “the right of the people to keep and bear Arms, shall not be infringed.”
This is as clear today as when it was written. Infringed still means today what it meant then; The Oxford dictionary has it as:
act so as to limit or undermine (something); encroach on : his legal rights were being infringed | [ intrans. ] I wouldn’t infringe on his privacy.
But surely you knew that. Infringe isn’t an uncommon word. When I begin to infringe on your personal space, I’m too close. I’m just inside the edges. When I seriously infringe on your personal space, I’m probably way too close, perhaps touching you. If I’m not infringing on your space, I’m far enough away as to not affect your perception of your own space at all.
Keep and bear... I shouldn’t have to explain this at all, though I’m perfectly happy to do so. Keep means... keep. To have around, nearby, handy, available, ready to access. I keep peanut butter in the cupboard. I can go get it any time, because I kept it; I didn’t get rid of it or give it away. I can bear that peanut butter over to the table or bear it to my neighbor’s house; she can bear a child; I can bear a burden; to bear means to carry. Both then, and now.
So what this is instructing the government to do (or rather, not do) is simple: They are not to, in any way, even a little, interfere with the people’s right to own, hold, have arms; nor are they to interfere in any way with the people’s right to carry them around.
So what does that mean in terms of modern gun laws? Well, for one thing, if they say you can’t carry your gun for any reason, that’s infringing on your right to carry. For another, if they say you can’t keep a gun in your house, that’s infringing on your right to keep. This clearly means that they cannot require you to have a “license” for a gun that has any material effect upon gun ownership or carrying such arms; because then they are saying that without such a license, you cannot keep or bear, and that’s clearly infringing. So any such law is unauthorized, that is, the constitution forbids such laws.
Likewise, if they say you can’t carry some particular weapon, that’s infringing as well. The 2nd amendment specifies “arms.” So we should at least take a look at what “arms” meant at the time.
In 1791 (when the bill of rights were ratified), “arms” included all manner of pistols, rifles, muskets, cannons, explosive and solid cannonballs, cannonballs filled with shards, frigates with multiple decks of cannon, wagons with explosives and multiple guns rigged to fire in unison, chain shot, flaming missiles soaked with pitch and other inflammable, easily spread and hard to extinguish compounds, swords, knives, bayonets, fighting canes, brass knuckles, battering rams, catapults, siege towers, glass bottles, garrotes, whips, chains, both fused and mechanically triggered explosives, striking weapons like sticks and poles and quarterstaffs and maces and war-hammers, spears, bows, axes, arrows and crossbows… I could go on for quite some time. All of these things were in common use in warfare and self-defense at the time. Yet, knowing all these things, all they put in the 2nd amendment was… “arms.” So clearly, that’s what they meant. Arms of any kind. They didn’t say “muskets and pistols.” They said arms.
Today, a few things have changed that make it clear that the 2nd amendment, while it has served us well for centuries, could use some updating. Nuclear weapons are arms; so are biological weapons. I can say with considerable confidence that most people, including myself, are not OK with the idea that John Doe down the street has a working nuke in his basement, or that Jane Doe down the other block has a nice warm batch of weaponized Anthrax baking in the oven. So if we take the 2nd at its word — arms of any kind — aren’t we in trouble here?
Yes, indeed we are.
However — the authors of the constitution knew that over time, circumstances change, and that they would not be able to predict in what precise ways they might change. So they put in article V, Amendment.
This prescient section of the constitution provides the government with a legitimate method to change their own constituting authority in a manner that honors the wishes of the people they are supposed to be working for. Imagine that!
In this case, the obvious thing to do is to offer an amendment that modifies the 2nd to say “arms except those that incorporate biological, fissionable, fusionable, or ionizing radiation means of destruction, either direct or indirect.”
Now ask yourself: Who in their right mind would object to such a modification of the 2nd amendment? Do you seriously think there would be any trouble at all getting a majority to go along with such a reasonable amendment? Of course not. The very idea is absurd. No sane person wants just any random other person to have power of that magnitude in their hands. No matter if they’re far left, centric, far right, libertarian or of any other political and social persuasion.
Unfortunately the government has a long, dark history of just doing what it wants to, as opposed to what it has been authorized to do. That is why you don’t see reasonable constitutional amendments. They’ve got the citizens accepting that the government should be able to rule out things like nukes arbitrarily even though the constitution forbids them to; because, after all, no sane person wants nukes. It sure seems reasonable on the surface.
But the fact is, if they can do one forbidden thing arbitrarily, no matter how well meaning it might be, they can also do anything else forbidden they want to arbitrarily as well, and there’s no assurance at all that the underlying purpose or the actual implementation will be well-meaning. This is why we must hold them to the limits imposed by the constituting authority, and furthermore, why we must be be very careful about how we allow the constituting authority to be modified.
Now, as to the four justices who dissented:
The Washington law forbid any citizen of DC from keeping a pistol at home. We ask: Is this constitutional? Well, does forbidding someone to own a pistol infringe on their right to keep arms? Yes, it certainly does. Well then, there’s your answer. This isn’t rocket science. The command is that the government shall not infringe; in this case, they are infringing; therefore the law is unconstitutional. End of story.
Ergo, the judges who dissented are either traitors (presuming they have actually read the 2nd amendment and understood it) or incompetents (because it is their job to read and understand that amendment); either way, we need to not have them on the supreme court bench.
As to the five who contributed to the majority decision as written by Justice Antonin Scalia, although they did the right thing (by which I mean they struck down the DC law), they still don’t understand why they’re doing it. Scalia says that they did it because the constitution protects “the inherent right of self-defense”, which is entirely beside the point (and not what the constitution says anyway); the law infringed — therefore, it was illegitimate. Period.
If you want to argue why the 2nd amendment is there, you should begin by studying the Declaration of the Independence and the writings of Thomas Jefferson. But again, those words aren’t in the constitution. What is there is simple, clear, and specific. So there’s really no need to argue, unless you’re being intentionally disingenuous.
Scalia also said:
Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on [...] laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings
Which is completely wrong. Because such laws infringe on the right to carry. Those laws are no more legitimate than the one they just struck down, and for the same reason: The government is forbidden to infringe; if a law infringes, it’s out of line. If they want to change this, they must amend. Without an amendment granting it, they have nowhere to go to obtain such authority.
As a side issue, the constitution directly addresses the federal congress, the federal government; so it might seem that we are only talking about federal authority. There is something else to consider, however, and that is the fourteenth amendment, which has been taken to mean that the entire bill of rights (amendments one through ten) apply to the state governments just as they do to the federal government. This means that states also cannot legitimately create such law. Beyond that, the rights fall to the people. So you can say that I cannot keep arms in, or carry arms in, your home or business. But you can’t say I can’t keep or carry them with regard to my own home or business, someone else’s home or business, or out in public.
Now, very seriously, do not go confusing authority with power. Authority is what the government has (from the constitution) that allows it to use a very limited amount of power legitimately.
Power can also be used illegitimately, and that is precisely what we see when government agents infringe on our rights and trample our liberties. Always keep clear in your mind what authority is, and what power is. They are not at all the same thing. Your power, as a citizen, is very limited — I would not advise that you attempt to face down the government’s use of power based on your (100% correct) understanding that they are not exercising power backed by legitimate authority. The government stooge’s bullet that takes you down doesn’t care about authority; it is the very manifestation of arbitrary, illegitimate power, and it will kill you 100% dead just the same, authority or not. At which point you are very little good to anyone, the questionable value of martyrs for a good cause notwithstanding.
So we know one very bad, unauthorized law has been struck down for the wrong reason. We should not be looking at this as an example of proper comportment of supreme court justices, examining an issue to see if it passes constitutional muster. Instead, we should take this as a warning that the entire bench is made up of people who don’t regard the constitution as the over-riding authority, literally the constituting authority, for the entire federal government — despite the oath they swore to the contrary. And that, my friends, is nothing less than a wake-up call.
The problem is, as it has been for some time, is that modern Americans are deaf to such calls. This is why our society is literally crumbling around us with regard to our rights and liberties.
