Recreating the Second Amendment
The Supreme Court did what pretty much everyone expected today: for the first time in history, they deemed the Second Amendment an individual right and denied the ability of the government to ban all possession of guns. Most likely due solely to the influence of Justice Kennedy, they did not go so far as to say that there could be no control or restriction, opening the door for gun control laws so long as they do not amount to a gun ban.
Personally, I’m okay with this–I don’t like guns, and am a strong proponent of gun control which is rationally designed to maximize the restriction of illegal gun sales, possession, and use, while minimizing any obstruction to law-abiding citizens to possess arms; I am also a strong proponent of requiring safety training and testing. All of this is allowed under the new decision, which is why I am okay with the results.
What I am not okay with is the route they took. In arriving at their decision to individualize gun rights, the Wingnut Four essentially rewrote American history, claiming that the Second Amendment had no military basis, was always intended for personal/home defense, and so is an individual right. In short, in classic Scalia fashion, they ignored history and made up whatever baloney suited their personal beliefs–reigned in only be Kennedy’s relative moderation.
Scalia concluded his opinion, “what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” No, it is just your opinion that it is the role of the court to pronounce every other amendment extinct. Just the other day, the Wingnut Four of SCOTUS tried vehemently to expand the use of the death penalty. Previously, Scalia railed that he was in the minority in trying to abolish the establishment clause of the First Amendment. Via their role as strict constructionists, the Wingnut Four have–by the definition of former Chief Justice William Rehnquist (“a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs.”)–vowed to decimate the Fourth through Eighth Amendments. And they have assiduously ignored the Ninth Amendment, which, after all, completely and utterly negates their beloved Wingnut-code-word philosophy of strict constructionism. Ergo, Judge Bork called the Ninth Amendment an “inkblot,” and Scalia has argues that Congress has the power to decide which rights the people possess, despite the Ninth Amendment clearly stating that the people must be protected from that same Congress to ensure these rights.
To me, the Ninth Amendment is what truly assures an individual right to keep and bear arms; the Ninth reaches back in history for pre-established rights, covers the rights so basic and vital that they need not even be named, and protects other rights that can be inferred from the others which are enumerated. And in this decision, Scalia actually cites all of these reasons, but does not apply them to the Ninth Amendment–he instead sees them as support for the Second Amendment. But there’s a reason he and the other members of the Wingnut Four have this blind spot: recognizing the authority of the Ninth Amendment would inevitably lead to full recognition of a right to privacy, which they absolutely do not want to recognize.
If you read any part of the decision, read the dissent by John Paul Stevens; he tears the majority a new one, pointing out in surprisingly simple and bitingly accurate language how their rationale for seeing the Second Amendment as an individual right is shoddy, at best. He notes that the designation of the right of “the people” in the Second Amendment is indeed not as universal as that in the First Amendment or the Fourth Amendment, as the right to keep and bear arms can be limited and even revoked in ways that the other amendments cannot be; then he quite rightly points out that the preamble to the Second Amendment (“A well regulated Militia, being necessary to the security of a free State”) is not just flowery decoration, but actually means something.
I was also very pleased that Stevens pointed out something else which is blindingly obvious: that the Second Amendment was not drafted so as to allow people to protect their homes from criminal trespass or otherwise for self-defense, but instead was drafted purely as a way to ensure that the people secure the right to maintain small, local armies. He points out what I have pointed out, what people who support the Second Amendment as an individual right pointedly ignore: that until the second-to-last draft, the Second Amendment contained a clause guaranteeing conscientious objection–that is, people who do not wish to fight because of their religious beliefs could be exempt from the obligations of the Second Amendment. One does not have to be exempted from a purely individual right to possess arms if one wishes–but one does have to be exempted from militia service.
The original bill had the added clause, “…but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” Does that sound like a call for an individual liberty? Of course not. It is not even consistent with that.
But, as I said, the end result of this decision is not as disastrous as one may fear, as it does not put an end to gun control–in fact, one criticism of the majority decision in the dissent was that the ruling left determinations on specifics of what restrictions may or may not be allowed an open issue for future courts to resolve. But for now, there is nothing keeping cities, states, or the federal government from enforcing a broad range of gun control laws, in addition to banning some forms of guns, such as fully-automatic “machine” guns and other weapons which go beyond normal definitions of self-defense.
To take the most optimistic view, this decision may even help gun control, as the main reason most Americans oppose them is that they fear such controls would evolve into gun bans. Now that the Supreme Court has ruled that such a thing is unconstitutional, that fear should now evaporate, making it possible for people to express outright favor for restrictions they agree are reasonable, but before feared would lead to gun bans.
You can read the decision in PDF form here. I have not had the chance to read as much of it as I would like to due to time constraints (it’s late at night as this story breaks, and I have a ton of work to do through Saturday).
Comments?
Comment: You’re wrong.
Look, even if you accept the premise that the intent of the Second is all about militias and armies, the fact of the matter is that it STILL says that the right to own a gun falls to the level of the people. Individuals.
An outright BAN on guns by the government in order to “keep the people safe from themselves” is precisely the kind of weak excuse that the framers wanted to prevent being used. DC’s handgun ban is a terrific example of how “good” intentions can be used to take away things that honestly belong to the people.
Other good examples would be just about everything that the Bush Administration has done in regards to Constitutional questions over the past 7 years. Oh, they’re not spying on your phone calls to be a big, sneaky, obtrusive government, Luis; they’re doing it to protect us from terrorists! They’re not torturing potentially innocent people, they’re keeping the bad guys away!
The real question, to me, isn’t whether or not the Second Amendment was meant to allow individuals to own guns. (Look at it this way- even in the “militia” argument, do you honestly think that the framers would have forseen a day when a local government would outright ban gun ownership by individuals, and approve of it?)
The real question is whether or not we NEED the Second Amendment in a modern society like ours. Examples both ways exist- Great Britain limits guns, Switzerland has widespread gun ownership. Do we delete or amend the Second, or do we continue on?
Sure, individuals: Able-bodied male individuals between the ages of 18 and 47, who would have to report for duty in the militia (the National Guard now, by fiat of the Dick Act) service. But that point is moot, as I have pointed out–I see the right residing in the Ninth Amendment, a true individual right not associated with militias.
Yep. They said so, right there in the Ninth Amendment, clear as a bell. Glad you agree!
Paul, I’m pretty sure that by now you’ve been exposed to my saying that I believe in the individual right and oppose bans, and that the founders saw the individual right to keep and bear arms as a natural/traditional right–why do you continue to write as if I approve of bans or think that the Constitution was written to allow them? Even in this very blog post, I state unequivocally that I believe there is an individual right built in to the Constitution.
Or is your above question rhetorical or ironic?
Which, ironically, the Wingnut Four would gladly endorse and try to rule as “Constitutional.” But on the meat of this one of your paragraphs, you’re not going to get any argument from me….
And severe restrictions attached to gun ownership–mandatory military service, rigorous training, tons of regulations, licensing, registration of weapons and ammunition, etc. And even at that, the Swiss are thinking of reigning in the you-must-keep-a-militia-gun-at-home tradition in light of a wave of suicides and domestic-violence killings using the militia-issued weapons. Switzerland is a great example of free gun use only if you don’t look too closely at it; but if attention is paid, it suggests a far greater level of gun control restrictions than most gun advocates would ever want imposed here in the U.S.
I think that in the final analysis, the only real change this ruling is going to have is that for the first time I am aware of, the basic right to defend oneself has been found to be protected by the constitution. This will do more to stop America from going the way of the UK than anything else, and I see that as a good thing.
Unfortunately, this is not going to stop the Brady/VPC crowd from attacking gun owners in every sneaky way they can. Expect to see a continued push for ammo taxes, ‘assault weapons’ bans, etc. The obvious way around this ruling will be to sweep more and more guns under the heading of ‘assault weapons’. If they can get the most popular plinking rifles listed as ‘assault weapons’ and drive up the cost of .22 ammo by way of registration taxes they can severely interfere with kids being taught to shoot. People who are taught to shoot as children are hard to sell on the ‘guns are evil’ theory that is the center of current gun control activism. People who’s only experience with guns is from TV and movies however….
(note that the notion of listing .22 target rifles is not theoretical, New Jersey does exactly that, and they are sending people to prison because it never occurred to them that Granddad’s target rifle could possible be illegal. Come to that, the ammo registration laws I’ve seen all include a tax on ammo that is about 25% of the cost of .22 ammo. Awful easy to raise the tax after you get it in place.)
Sad truth is that the Brady/VPC idiots are not going to be stopped by this ruling, and until they are stopped, gun owners are going to fight registration to the end.
John:
Just curious: what is the evidenced, reasoned argument against gun registration along the lines of automobile registration? How do the arguments against gun registration not also work against car registration? I’d like to hear your views on this.
I am heading out of town directly after work today, so I cannot give this the attention it deserves. Maybe I will return to it when I am back.
The short version is this : the court has ruled that ‘reasonable restrictions’ are allowed, but it is yet to be seen how far this can be pushed. A large number of people will also question (with varying degrees of justification) whether this ruling will even be obeyed by law enforcement. (I suggest you look up ‘asset forfeiture” at the Cornell Law website to see an example of what people fear. It is not the same issue, but it shows clearly how easy it is to simply ignore the constitution.)
The most simple, and really the strongest, argument against registration is and will always be the same: Registering your firearm is exchanging a physical inability to take your guns for a promise not to.
Scalia is an interesting head case. I saw the piece 60 minutes did on him – it was flattering of course. All soft ball questions.
Scalia claims to not just be a strict constructionist, but an originist – the strictist of strict constructionist. Originist believe that you have to put your self in the minds of the framers of the constitution.
To say that this is a new perspective is flatly wrong. It is exactly the what Taney used in the Dredd Scott case to claim that African Americans had no rights under the constitution (and there for could not ever be free). Taney, you see, found that if the framers said all men are created equal, and then still allowed for slaves, it was obvious that the framers did not hold african-americans (or maybe it was slaves) to be men.
Now the oddity of this is that Strict constructionist, like our President, boy-george, used the Dredd Scott case as a dog whistle in the last election to rally the religious fundies. You see, the religious fundies believe that the unborn are being treated the same way as the Un-Europeans were during Dredd Scott.
This is where journalism is failing us today. 60 minutes could have asked Scalia what he thought about Taney’s decision. Either he’s for Dredd Scott or against it. Either he’s for Strict Constructionism or against it. If he’s for Originalism, then he has to agree with Dredd Scott which puts him at odds with the fundies. Anyway, it would have been profound to hear Scalia have to defend Originalism in the context of Dredd Scott.
The broader is issue that people miss, i think, is the why and wherefore of strict constructionism. And here I see something very dark. And that is, the attempt to turn our Common Law system into one that functions like Civil Code system. Why? because rule by ideology is almost impossible in a common law system.
Consider for a moment World War II. World War II can be viewed as the Common Law world fighting a global war against the Civil Code world. How is that you might ask? Wasn’t Russia on our side? Aren’t they Civil Code?
Well, yes, and yes. The fact is, Common Law – which is nothing more than Legal Pragmatism with a bias towards liberalism – covers only 1/3 of the earth, Civil Code 2/3rds. So for Common Law to win WWII, it had to ally it’s self with one of the Civil Code Countries. Which it did with Soviet Russia.
I’m sure this still makes no sense to the average reader. But hang on.
In common law countries, Judges can make law. If the society doesn’t like it, they can over rule it through legislation. That is the tradition of Common Law countries. The beauty of the system is that judges rule based on pragmatism. They take the bits and pieces from any and every ideology and apply them, but only narrowly, to answer a narrow question. Thus ideologies get used but only where they are strong, and remain dormant where they are wrong or week. Because ideology is decided in the judicial sector, the political sphere is largely ideology free and again, pragmatic, with a bias towards liberalism.
In Civil Code countries Judges, by tradition, cannot make law. All law can only be made only through legislation. This is seen as more liberal. But the unintended by product of this is that it forces ideological questions into the legislative sphere, which forces ideology into the political sphere. In the last half of the 19th century, ideology movements arose most profoundly, but only in Civil Code Countries of continental Europe. At that time, liberalism was the ascendent ideology. But liberalism entered a long period of crisis beginning with World War I. As liberalism failed, ideological movements came to the for in the first half of the 20th century. Communism in Russia, Fascism in Italy, Nationalism in Japan, then Phalangism in Spain, Naziism in Germany, and finally Communism in China, North Vietnam and Korea.
Throughout this entire epoch, common law countries muddled through the crisis: Canada, England, Australia, United States, even India. None of these states resorted to extremism. After World War II, increasingly Civil Code nations found it prudent to adopt vestiges of Common Law systems that allowed for elements of judicial review.
What does this have to do with strict constructionism in the United States?
The desire of Neocons to rule our society through ideology is what is behind the movement to strict constructionism.
Neocon philosophy is a descendant the brain child of Leo Strauss. Leo Strauss was a political philosopher. His philosophy is based upon 19th century German Philosophers such as Nietzsche. His basic philosophy was formed prior to WWII in Germany (a civil code country) so assumes the rule of ideology. Strauss was kicked out of Germany prior to WWII, so lost the lesson of ideological rule taken to its fullest extent. Anyway, the Neocons need ideological rule to justify their campaign of ever increasing concentration of wealth and power.
Never mind that the lesson of 20th century history is that judge made law is a superior system because it gives society two bites (chances) to come up with the best solution for a problem and reduces the importance of ideology in politics, or that ideological based rule leads to disaster of the most profound kind.
The biggest question of our time, and our parents time is not which ideology should be used, but whether pragmatism or ideology should be ascendant.
The efforts of conservatives to eliminate much of the bill of rights, is out of a desire to back into our common law system, civil code instrumentalities.
By the way, in adopting common law, the framers were acknowledging a right to privacy. It’s fundamental to the common law of torts (torts is the law of wrongs, as opposed to rights) – people cannot violate your privacy.
By the way, I am against widespread use of guns. But that’s just personal philosophy. However, the framers didn’t create the preamble to the 2nd amendment for nothing – its there for a reason. And Scalia, in his originalist mindset are well aware of it, I’m sure. It’s just another case of cognitive dissidence on his part – something he’s well versed in.
So I am back in town, and this has been perking in the back of my head all weekend. After some consideration, I do not think any more reason need be given that what I said before.
Right now, the government can’t take my guns. I lack the trust to trade that for won’t take my guns.
If enough of the really obnoxious “common sense” laws are repealed by this ruling, that might someday change. But we are not going to take it on faith, not yet.
As a note, it is often stated that the NRA is a motivating force in the gun rights movement. I cannot speak for everyone, but based on the gun owners I know (probably 90% of the men I know) the main drive for gun rights comes from the Brady Campaign and the VPC. The NRA is an ally, not a leader.
BTW, a while back I suggested you run a simple correlational study between firearms ownership and homicide rates by state. Ever look into it?
The purpose of the supreme court is to interpret the constitution. Its not a surprise that they made it fit into their own views but wouldnt a group of justices with the oppistie views do the same thing? It is only unjust when it doesnt go the way you want it to. I believe in basic control measures such as backround checks and not allowing fellons to own guns but beyond that is too much. The poeple that want to outright ban guns or impose such strict regulations that it is almost imposible to purchace a firearm are people that have never touched a weapon in their lives. They fight for a cause that they know nothing about. Like trying to ban “assault rifles” the funny thing is they know nothing about the weapons themselves. The term assualt rifle was invented to scare people because they hear that and instanly they think its bad. Well the truth is an “assualt rifle” is just a rifle that fires semi automaticly ak-47’s and ar-15’s are not all fully automatic (it is illegal to own fully automatic weapons without going through miles and miles of red tape) Handguns are more dangerous than a ak-47 becuase its pretty hard to hide an ak but a pistol neatly tucks in your waistline. The point is know the facts before you fight for somthing becuase when you dont know what you are talking about it makes you look stupid