Saturday, June 14, 2008

Defending the Second Amendment

Supporting nine out of the first ten Amendments to the Constitution is not enough

"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"

I don’t own a gun.  I never have, and probably never will.  In fact, I’ve never even fired a weapon.  Not in anger, not for self-defense, not even for fun.

And yet, as someone who has never exercised my Constitutional right to bear arms, I’m as adamant about preserving and protecting this right as I am about preserving and protecting my right to free speech, which I tend to exercise frequently.

Over the years I’ve seen many defenses of the Second Amendment.  They range from leaving out the “well regulated militia” part and focusing on “the right of the people,” to the general admonition that tyrannical governments prefer a disarmed citizenry. Critics, of course, attack the people’s right to bear arms by assuming that only card-carrying militia members (the kind authorized by the government, not those self-defined groups populating the state of Montana) can own or carry weapons. Or, in an appeal to emotion over Constitutional language, focus on why the average citizens needs an arsenal of pistols, shotguns, rifles, rocket launchers, and AK-47s.

A lot of this discussion, in my opinion, misses the point. If I was defending the Second Amendment — and yes, unfortunately, given the state of political education and public discourse today it needs to be defended — I’d approach it something like this:

The Bill of Rights

The Bill of Rights, although technically no different than any other provision or amendment of the Constitution, does enjoy a political distinction. It was part of an understood agreement that helped ratify the Constitution itself. This means that we must look at Amendments 1-10 through this prism, rather than just say they reflect the thinking of one period of history. By contrast, the 18th Amendment (prohibition) had the same force of law as all other Amendments and original articles/provisions of the Constitution, but it was clearly just a response to an historical moment. 

Understanding the Second Amendment as part of the overall Bill of Rights, not as a stand-alone 27-word fragment of the Constitution, is important because the making of a Constitutional provision cannot be separated from the politics of the time.  Each article of the Constitution and each Amendment to the Constitution has its own “history” that the Court will refer to in order to discern its original intent; assuming, of course, that the individual members of the Supreme Court are actually interested in determining the constitutionality of an issue, rather than imposing their own standards of “fairness” on constitutional matters.

With the first 10 Amendments, it is not merely individual histories that matter, but a recognition that each Amendment is part of an additional, over-arching logic and special place in history. They are a “package” so to speak that collectively says something important about the people’s core, basic right to free speech, the right to bear arms, the right against self-incrimination, and so on.  Each right is bound to the other; some flowing from a previous right, others there to protect the exercise of the other rights.

Changing the Constitution

Looking at the Second vs. the Eighteenth amendment (prohibition), another proof of the Bill of Right’s special place is seen. We can overturn the 18th Amendment with the 21st Amendment, as we did in 1933, without provoking a constitutional crisis. We can even change the way a president is elected, the date a president is inaugurated, limit a president’s term in office, and change the line of succession for a president. And each of these constitutional provisions could be changed again at some future point without public outcry. 

But fundamentally change any one of the first 10 Amendments, and people will perceive that the basic rights embodied in the Constitution itself are under attack. It may be more accurate at this point to say “may” perceive instead of “will” perceive because, as I’ll explain later, the public needs to be aware that a fundamental right is in danger before it will react to that threat. And this recognition depends on a couple of factors that I’ll discuss in more detail shortly. 

Free speech is one case where the public is generally aware that a basic right exists, although they may not be entirely aware of exactly what that right entails. The First Amendment entitles one to speak freely without undue governmental constraint, with speech defined not just as words being written or vocalized, but encompassing the methods of free speech as well (with the unencumbered use of money being a principle vehicle to exercise this right). It does not, as some people contend, also demand the right to be heard. George Soros has a perfect right to spend millions, if not billions, to spread his bilge.  I, however, am not obligated by the First Amendment to listen to his rantings, or if I do listen, believe what he says.

In recent years the Court has eroded some of the protections normally associated with the right of free speech — upholding Campaign Finance Reform, to name the most prominent example — provoking a long, sustained, ongoing public outcry. However, as vociferous as these complaints are to a sizeable section of the population who not only want a full restoration of their Constitutional rights, but fear even further erosions of the Right to Free Speech by political sleights of hand like the “Fairness Doctrine,” this outcry would become a deafening roar if the First Amendment itself was formally overturned and replaced with an entirely new concept.

This is why changes to the Bill of Rights are normally of the “frog in boiling water” kind.  That is, they are small and gradual modifications whose impact is felt over the long passage of time, like placing a frog in a pan of water and gradually turning up the heat. By the time the cumulative changes have been recognized, the water is at full boil and the frog is dead. No such subterfuge is needed to change a presidential succession policy, or alter the way in which a senator is elected to office.

This gives the first 10 Amendments a de facto status over and above any other Amendment, or even any other Articles of the Constitution itself. Interstate commerce has been radically changed over the years through Supreme Court interpretations. And even such things as the president’s power to fight a war has been altered by legislation (the War Powers Act), or simply by the changing world situation that makes formally declaring war no longer practical in all cases. 

Some people will point to this last example and contend that the Constitution is not simply being changed; it is being subverted. There is room for legitimate debate here, and the passion it provokes is noticeable and real. But that passion and debate is not widespread. The overwhelming majority of those opposed to the use of US military force in Iraq do not point to the Constitution’s declaration of war provisions to ground their argument. This is a debate among academics and ideological political activists. But use the government to close down a newspaper for saying unkind things about Bush, McCain, Hillary or Obama, and even the guy who never heard of Adams, Jefferson, or the Federalist Papers will see a threat to his/her basic Constitutional rights.

More here

Reality speaks for itself: "Niccolo Machiavelli, who was a sort of Karl Rove of his day, said of the Swiss that they were "the most free and most armed people" of Europe. Get it? The connection between arms and freedom? That statement is still true of the Swiss. Many people know that they practice neutrality, but not many know that they practice armed neutrality. If the gun controllers' claim that the mere presence of arms leads to mayhem were true, the Swiss would have wiped themselves out years ago. There are guns and gun ranges all over the place. You would be hard-pressed to find a Swiss home without a firearm and ammunition. Yet, the Swiss have a very low crime rate. If you were a robber or a rapist, who would you rather have as a victim? Someone who is armed, or someone who is defenseless? Even a stupid criminal knows the answer to that question. If the police can protect us -- which is another claim the gun-control people make -- then why are so many people murdered, raped and robbed? Even the television fictional stories tell you the answer to that. The cops get there after the crime has been committed. Otherwise, there wouldn't be a crime scene. Nearly all the cop shows open with the police looking at a dead, unarmed body."

Defense fund set up for jailed AZ hiker: "Former Valley teacher Harold Fish has spent two years in prison for a deadly shooting he still insists was self-defense in the forest north of Payson. And if his supporters have their way, this Father's Day will be Fish's last behind bars without being able to spend it with his wife and seven children. He faces eight more years in prison for second-degree murder in shooting 43-year-old Grant Kuenzli on a Coconino National Forest trail four years ago... Fish was involved in a May 11, 2004, shooting that stirred passions in Arizona and nationally about self-defense, gun rights, the dangers of unleashed dogs and hiker safety in the wilderness. Fish, now 61, was completing a long day hike when he encountered Kuenzli, who was camping with his dogs in the forest near Strawberry. Fish said he was defending himself from a violent attack after two dogs and then Kuenzli charged at him. Fish shot Kuenzli three times. Kuenzli died at the scene with no witnesses and limited forensic evidence. Debbie said the jury would have exonerated her husband if Judge Mark Moran had allowed testimony about Kuenzli's history of menacing behavior, particularly when confronted about his dogs. That omission is one of more than a dozen issues raised in Fish's appellate-court filing. The fundraising letters on Fish's behalf ask for donations of $25 to $1,000 or more."

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