Give me liberty and give me death

When Americans talk about guns, someone is sure to bring up the Second Amendment, and you will often hear the last part of it quoted, but seldom the rest.  Here it is in full:

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.[8]

 

If the framers had simply wanted to affirm a right to bear arms, they could have done so—nobody was holding a gun to their head.  Instead, they chose to qualify it with a absolute construction specifying the purpose of the amendment: not to guarantee every man’s right to mow down a classroom full of 6-year-olds, not to blow away a movie theater full of nerds, not even to go hunting or take pot-shots at trespassers.  The amendment is there to ensure the formation of a well-regulated militia.

A lot of the founders apparently saw the United States as a loose federation of sovereign countries, and wanted to ensure that these countries could defend themselves against any standing army created by the federal government.    This may have made sense in 1789, and obviously made sense to some people in 1861, but it is absurdly inaccurate as a description of the nation we live in.  If anything, Americans now have a stronger sense of national identity than most other people—when people in Louisiana talked about secession after the last election, everybody knew it was a joke; the same cannot be said for secessionists in Quebec or Scotland.  When my Minnesotan nephew took a job with the Wisconsin Air National Guard, nobody felt that he was turning mercenary and selling his sword to a foreign power.

There are problems that arise when your laws were written 250 years ago in a different universe, and the best response would be simply to repeal the Second Amendment.  Failing that, we could ignore it as having no application in the real world.  But if we really are going to try and apply it, then we will need to reconsider the kinds of weapons it covers, because the idea is for citizens to be able to face down the US military.  Little guns may be enough if you want to stalk and murder the random black guy who’s walking through your gated community, but if you are serious about confronting the federal government, you will need to think bigger…even your assault rifles are going to look pretty wimpy when they meet tanks and commandoes with tactical air support.

So if we’re going to take the framers at their word, we need to legalize any kind of weapon you might need to win a battle against Uncle Sam.  You say you don’t actually trust your creepy neighbor to defend your liberty with surface-to-air missiles and anti-personnel mines?  Well, me neither, so I think we can leave the Second Amendment out of the discussion.

I gather that some, including Supreme Court justices, have invoked a supposed right to bear arms from English law, especially as represented in the “Bill of Rights” from the Glorious Revolution” of 1688 (actually more like a Protestant coup, but whatevs).  But here the “different universe” problem only gets worse: the Glorious Revolutionaries specifically mention that “good Protestants” have a right not to be disarmed by a Papist King, which seems kinda mal a propos.  They claim to be invoking an ancient liberty, but (a) Brits always have to claim things are ancient, just as Romantics have to claim they are natural, and (b) there never was such a right for most Britons, who could get arrested for carrying a sword.  I shudder to think what would have happened if a commoner went through town on a war-horse dressed in armor and carrying a spear.  Now, if you go back far enough, you will find a time when some Britons, namely aristocrats, thought they had a right not only to bear arms but to assemble private armies  I suppose that this is more or less what our radical gun-rights folks think, that we should have a democratized version of Game of Thrones, with every household a little battle-troop.  I would much prefer to keep Westeros on the other side of the fact-fiction boundary.

 

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6 Responses to Give me liberty and give me death

  1. Tyler! says:

    I enjoyed this. I’ve yet to chime in on the gun control debate anywhere online just because I find the exercise and most of the people arguing about it exhausting. It’s an important discussion, and a lot of tragic sh*t had to happen to bring it to the forefront. But the truth of the matter is that not a lot will change either in the legislative arena or the gun violence arena. Even if strict federal gun laws were implemented (which I humbly predict won’t happen), then the old adage of outlawing catapults applies.

    Now, the Constitution part. I would argue that of all the “rights” we consider as fundamental, the right to bear arms is one of the most clearly protected. Yes, there is some framing language in the amendment, but I don’t think that negates its protective effect. If we demanded concrete and parsimonious “the government shall…” or “the government shall not…” language throughout the Constitution, then a lot of the rights we avail ourselves of would be gone.

    The Constitution never guarantees the right of citizens to be free from laws infringing upon privacy. But the right to “privacy” between a doctor and a patient is exactly why the Supreme Court says that women are free to have an abortion—to use one example—. Now, I’m not a constitutional scholar, but the amalgamation of substantive due process and the “penumbra of rights” which eventually lead to the concept of privacy seems a much less clear-cut protection than the right to bear arms.

    Point is, a lot of the rights that people now seem to regard as primal are nowhere clearly writ in the Constitution (e.g., the right to privacy, the right to speak with your attorney in the pokey, the separation of church and state, the right to travel, the right to vote). So if it’s a question of clarity of intent and good sentence structure, the right to keep and bear arms seems a lot more cut and dried than a lot of the other things we consider to be constitutional protections.

    Obviously, there is still the argument that the second amendment is outdated. Maybe that’s the case… a lot people (including myself) don’t think it is, but then a lot of others do. And that’s why they made amendments… to ensure that if we ever wanted to guarantee that only outlaws had catapults, we could.

    • Roy says:

      So, are we simply to ignore the first half of the amendment? If so, what is the rule for deciding which parts of the Constitution are to be taken seriously? If not, I don’t see any way around the idea that the weapons the framers meant to protect were military weapons, such as would be useful in fighting againstgovernment tyranny. I do not know the adage about long catapults,, but I do thinke that the proper solution is to amend the Constitution to abolish the barbaric and silly ‘right’ to bear arms.
      I thought Roe v. Wade was widely considered a crappy opinion, and I think the supposed right to privacy was a poor defense of a correct decision. Privacy is a dangerous concept because it can be used to say that the law shouldn’t interfere in domestic abuse. Perhaps the framers thought the rights of liberty and the pursuit of happiness mentioned in the Declaration of Independence were, er, self-evident, and didn’t need to be particularized, but of course people have a right to do anything that does not harm or threaten anyone. Abortion is obviously covered under this, unless you think the fetus is a person, in which case it obviously isn’t.
      I also don’t feel that the acquisition of devices whose only purpose is to murder people is covered under such a right, whether said devices are automatic rifles or thermonuclear bombs.
      I don’t think I said anything about gun control laws in my post, though. I think what we need most is not more stringent laws but a cultural transformation, so that guys with a survivalist arsenal in their basement are universally shunned and considered freaks and can’t get a date, as I think would be true in most civilized countries.

      • Roy says:

        Of course, I don’t think like a lawyer, and John Housman would totally give me a dime and tell me to call my mother. The contortions necessary to make a document written for a loose assemblage of colonies by a bunch of slavemasters and smugglers in powdered wigs function as the constitution of a modern democracy probably require specialized training.

  2. Tyler! says:

    There are two routes the gun control or ‘repeal the 2nd’ argument can take: the should and the could.

    The “should” invokes ideologies, statistics, appeals to emotion and quippy sayings like “when catapults are outlawed, then only outlaws will have catapults.” Nobody changes their mind, and next thing you know, somebody’s CAPS LOCK IS ON and somebody calls somebody a “hippie” or a “hick.” The “should” is the stuff of forwarded emails from conservative aunts that can’t fact check, facebook flamewars, or the 96 point font of a HuffPo headline. It’s tiring.

    The “could” is the more important consideration because if a change can’t happen, then there is little use in worrying about whether it should. And I think if we are talking about getting rid of the Second Amendment, then we are in the realm of impossibility. There is also an extremely steep hill to climb with any sort of effective ‘gun control’ in light of the recent Heller and McDonald cases. In short, where cities like Chicago and D.C. with comparatively high gun crime had comparatively stringent gun control laws (see catapults), their laws were found to run afoul of the Second Amendment. So, as it stands now, the courts are not the gun control advocate’s refuge.

    I brought up the abortion thing, not because I’m trying to cram all the controversial junk I can into one thread, rather because it’s a good example of rights not outlined in the Constitution. I tried to contrast it with a right that I think is pretty clearly delineated. Yes, there is framing language in it, but it isn’t conditional (the framers didn’t require you to be in a militia or at war to possess a gun… if they wanted that, they would have said so, I think). My point—I guess—is that lack of clarity in language isn’t a winning argument when you consider all the other ‘rights’ we consider to be derived from the Constitution, but aren’t explicitly there.

    Yes, it was written a long time ago by white slaveholding men, and knowing their wisdom was limited and times would change, allowed for the document to be updated. If they were wrong, and guns have reached a point of hazard to Americans that could never have been anticipated and must be countered, then so be it. But you have to work within the system. Maybe I’m approaching this like a lawyer, but we’re talking about laws. And I think that even if enacting super-strict gun laws or abolishing the 2nd were possible, I honestly don’t think it would curb violence at all.

    I agree that there probably should be a culture change, but under my own logic, I need to first ask whether there can be. And I don’t know the answer to that. Is the ideological divide in this country going to widen or narrow? It sure seems like one’s gun stance follows ideological lines pretty faithfully (though I happen to think of myself as one exception), so until that gap can be narrowed, I doubt whether a drastic change like abolishing an amendment is at all possible.

    • Roy says:

      I think that the absolute clause _does_ constitute a condition, just as when someone says “The President being absent, the Vice-President chaired the meeting,” it means the VP chaired the meeting _because_ the President was absent. That’s how that grammar works. I believe the framers envisioned every citizen as a member of a militia-in-waiting…I mean every white male citizen, of course.

      I get your point, that if we accept the right of privacy, we should accept the right to bear arms, since it has a firmer basis; my objection is that I’m not sold on the right of privacy either.

      There was a nice bit in the Economist, pointing out that almost simultaneously with the CT massacre, a deranged man in a murderous rage entered a classroom in China and savagely attacked the children. Several children were wounded, but since this wasn’t America, the guy had a knife, so nobody ended up dead. I believe that if we could become a nation where guns are relatively rare, our disputes would create fewer corpses…I guess you don’t agree.

      It’s not as though the Econumist is a left-wing rag–the cultural change I’m envisioning is not some fantasy utopia, I am daring to imagine that most Americans are capable of acting in a way that doesn’t make our closest allies and best friends scratch their heads and wonder what is wrong with us. The fact that even supposedly progressive politicians here feel compelled to talk about how much they love guns and enjoy firing them and respect everyone’s right to have lots of them only makes me feel more strongly that the opposite case needs to be made

      On Sat, Jan 19, 2013 at 10:16 AM, lippenheimer

    • Roy says:

      To be sure, I also envision a world where the French adopt a more-or-less rational labor law, Italians learn how to quit Silvio Berlusconi, Brazilian politicians live off their salaries, and the English make edible sausage. You may say I’m a dreamer, but I’m not the only one.

      On Sat, Jan 19, 2013 at 10:16 AM, lippenheimer

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