A truer understanding of the meaning of the Second Amendment

The Thinker by Rodin

This Washington Post OpEd by Dennis Barron (who is an English and linguistics professor out of the University of Illinois) really intrigued me. He takes the late Supreme Court Justice Anton Scalia to task for his reading of the Second Amendment. It’s this amendment that grants us gun rights. To refresh your memory, here is the Second Amendment 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.

Specifically he takes Scalia to task for his interpretation of “bear Arms”. Scalia said that it undoubtedly meant that it protected the right to use guns for self-defense. According to Barron, at the time it was only used in a military context. It meant the use of arms for “war, soldiering or organized, armed action” according to Barron.

As I pointed out years back, the court’s 2008 decision District of Columbia v. Heller in which Scalia voted with the majority essentially turned the Second Amendment into:

The right of the people to keep and bear Arms, shall not be infringed.

Perhaps some future true-constructionist court will rediscover the true meaning of the amendment. (Scalia thought of himself as a true-constructionist, i.e. someone who interprets the law as it was originally intended to be interpreted.) If Barron is right, then it’s quite clear the right to bear arms is derived only from the state’s need to have a well-regulated militia. Your right to bear arms is not because you like to shoot squirrels, target practice or even to protect your home. And it’s not like this is a mystery: it’s written in plain English.

If militias were actually necessary in 2018, given the number of firearms in circulation you would think there would be militias all over the place. If you were thinking our army is a militia, you would be quite wrong. Dictionary.com gives these definitions in order of most frequent use:

  1. A body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
  2. A body of citizen soldiers as distinguished from professional soldiers.
  3. All able-bodied males considered by law eligible for military service.
  4. A body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Today, the Reserve and National Guard would qualify under the first definition, but not our standing army. They are very well regulated too. So clearly if you are a member of either of these, your right could not be infringed, at least as long as you remain a member. In practice though the state probably won’t tell you to keep your guns at home, particularly not those military grade guns. They’ll have you drive to your local armory to pick them up and truck you somewhere in uniform with a bunch of other soldiers.

The second definition is rather murky. A soldier presumably has had military training so perhaps this also covers the Reserve and the Guard. It’s unlikely that shooting at rabbits qualifies you as a soldier. If you haven’t been trained to maim and kill people with firearms under a chain of command using actual military-grade guns, you can’t credibly call yourself a soldier.

The third definition is pretty sexist in 2018 so presumably can be ignored. It should include women but presumably does not include the feeble. So grandma would probably not qualify to keep a gun in her nightstand.

The fourth definition perhaps cover unofficial militias. There are these militias out there today, but they have no legal sanction and are ephemeral organizations at best. Since they have no official sanction, they can’t be considered “well regulated” so presumably they don’t qualify at all. Around the time of our founding though, these militias were all we had. Given that, it’s probably not surprising the founding fathers said, “Hey, we need to ensure we keep our militias or the Indians might overrun us. So we need to make sure that citizens can bear arms.” There was nothing that can credibly be called a standing American army during the Revolutionary War. To the extent it was the “Continental Army” they were the ragtag militias that showed up to fight the war that George Washington did his best to train (with little in the way of funding from the Continental Congress, by the way). Our military of militias proved pretty ineffective. If France hadn’t helped us, particularly at Yorktown, it’s unlikely we would have won the war outright. Anyhow, it is murky at best whether a group of ad-hoc people calling themselves a militia are actually a militia, and would not be in a 1790s sense. To stretch the definition of militia though, perhaps these people have the right to bear arms because they meet the definition of militia.

Even if you say a citizen has the right to bear arms though, the wording of the amendment with a proper interpretation of its predicate “A well regulated Militia, being necessary to the security of a free State” suggests to me that if Congress declared that a well regulated militia was no longer necessary to the security of a free state, then your right to bear arms could be infringed and no constitutional amendment would be needed. If at some future time Congress decided, “Hey, we need a militia again” then that right could return.

In any event that clause was not added as an afterthought. Rather, it’s a predicate. Its wording though is quite odd. In more modern English, it should be read as: “Only because a militia is needed for our country to survive, citizens have the right to own guns.”

It’s laughable to assert this right is unlimited because the Supreme Court has stated many times it is not an unlimited right. Inmates can’t own firearms. In many states, being mentally ill can disqualify you. You can’t own bazookas. States are free to regulate firearms providing they don’t take away the right altogether.

So it’s fine if one state decides that “arms” mean nothing bigger than a handgun and another an AR-15. It’s fine if one state says that minors cannot own guns and another state allows it. The Second Amendment is no more absolute than any other right in the Bill of Rights. And if properly framed in the context of the 1790s, it would be hard to argue that anyone has a right to bear arms for any reason other that to maintain a free state’s right to exist using a militia.

Maybe someday we’ll get there, but it’s now obvious that our interpretation of the Second Amendment is just dishonest.

Kindling in search of a spark

The Thinker by Rodin

About a month ago, I expressed my alarm with certain members of The Tea Party movement. Since I wrote, my alarm has grown. The FBI conducted a well-publicized raid of the Hutaree Militia in southern Michigan toward the end of March, arresting nine members who seemed dangerously close to attempting armed insurrection.

In fact, militias are popping up all over the place. The Southern Poverty Law Center reports an increase of 363 new “patriot groups” in 2009, an increase of 244 percent from 2008. You can bet these patriot movements are more about locking and loading guns than planting flags in veterans’ cemeteries. Randy Brogdon, a candidate for governor of Oklahoma is calling for the formation of a state militia to presumably protect Oklahomans from some sort of unnatural act, like the U.S. Army occupying the state and instituting martial law. (News to Brogdon: the state already has an armed militia. It’s called The National Guard.)

Meanwhile, Sarah Palin seems to be endorsing the idea of some sort of theocratic, or at least Christian-Judea state, when she actually said:

Lest anyone try to convince you that God should be separated from the state, our founding fathers, they were believers.

Ms. Palin clearly has not read her constitution, which explicitly separates church from state and specifically disallows any religious test as a condition of holding office. In fact, separation of church and state was a crucial aspect to our formation as a country, as centuries of witnessing what happened by merging church and state in Europe showed what a bad idea it was.

Just yesterday across the Potomac River, about 75 mostly white men brandishing semiautomatic weapons demonstrated their new right to bear arms in a national park. Who signed this bill into law? Why, the president of the United States. No, it was not the last conservative one, but the new liberal Democratic one named Barack Obama. Strangely, because they apparently inhabit a different world than the rest of us, they are convinced that Obama is trying to take away their right to bear arms. If words were bullets though, the words uttered at this rally would cause PTSD in any survivor of the Oklahoma City bombing who tuned in. Mike Vanderbough, leader of the “Three Percent” movement, had previously called upon followers to break the windows of thousands of Democratic Party offices in response to the passage of health care reform. He enlivened the group by smashing a brick on the stage at Fort Hunt Park. According to Dana Milbank of The Washington Post:

“I was trying to get the attention of people who are pushing this country toward civil war, that they should stop before somebody gets hurt,” Vanderboegh said of his brick-throwing campaign. He then read the philosopher John Locke’s words that there comes a time when people are “absolved from any further obedience” to their government.

The armed citizenry cheered. “This is what the other side doesn’t understand!” Vanderboegh shouted. “We are done backing up! Done! Not one more inch!”

One thing is clear. Democrats will not be starting any new civil war. With these sorts of remarks, the Hutaree Militia example and the increase in so-called patriot movements it is clear that a small minority of Americans is dangerously close to open insurrection. The kindling seems to be stacked. All that is needed is a match. It won’t take much to set these groups off.

They have made it abundantly clear that they feel America is drifting toward socialism, but they seem to be slowly absolving themselves of the need to enact reform through our constitutional system of government. So-called patriot Sarah Palin seems to be encouraging them. When pressed she will doubtless say that she was meant to be taken metaphorically, but it is abundantly clear that some critical mass of these militia members are not playing with a full deck. What are they to think when Sarah Palin says, as she did on April 9th to Southern Republicans to not retreat, but reload. Armed insurrection must be okay, because Representative Michele Bachmann (MN) at a rally also attended by Sarah Palin referred to the federal government as a “gangster government”. I guess the 2008 elections must have been rigged or something but it’s clear if anyone is openly brandishing arms, it’s these “patriot groups” not the Obama Administration.

It sure sounds like many loose-hinged people are piling up reasons for the ends justifying their ready means. Those who do or have held public office, like Palin and Bachman, are being irresponsible and possibly seditious by alluding to unlawful means to change government. No one who calls him or herself a patriot would ever start an insurrection against their own constitutional government. A true patriot values our republican government, in good times and bad. They know that however extreme things might appear at any one time, natural forces will tend to counterbalance other forces in time. That’s why we have elections and three separate but equal branches of government. Republicans will doubtless pick up seats in elections this fall. The only question is how many. If political power is what you yearn for, then insurrection is the worst way to go about it. The vast majority of us are not wingnuts. We value our democracy and the rule of law. While Democrats gaining seats this fall seems unlikely, there is no surer way to make this a reality than by engaging in some serious armed insurrection. Nothing makes property values and portfolios drop faster than a civil war.

President Obama is not a moron, and he realizes these so called patriots are a real threat. He is trying to reduce the threat in two ways. First, he has the FBI working closely with state and local law enforcement officials to figure out which of these groups are truly dangerous by defanging them before they cause loss of life. With so many groups, it is probably impossible to keep up with all of them. Second, he is keeping a low profile and not publicly talking about the obvious threat of domestic terrorism. Perhaps with a bit of luck none of these sparks will catch on this very dry kindling.

The sad reality is that the socialism these groups see is largely a figment of their fevered imaginations, and shows how out of touch they are with reality. Obama has not tightened gun laws. He has loosened them. Health care reform is not socialism, unless doing the same thing nationally that states like Massachusetts did is socialism. If so, Mitt Romney is a socialist. Requiring people to purchase health insurance is no more socialist than the vast majority of states requiring people who drive to buy auto insurance. If anything, health insurance reform enhances personal responsibility. It means that people have to take responsibility for the cost of their health, rather than foisting it off on the rest of us who are insured. It costs each of us insured about $1200 a year to pay in additional premiums to cover these irresponsible people. Why would any of these rugged individuals object to making people carry their own freight?

The truth is that if John McCain had won the presidency, proposed these same things, and enacted these same laws, the opposition would have been largely muted because these laws are actually quite mainstream and look very close to what Republicans were calling for back in the 1990s. What is the difference? Well, Obama is clearly a Democrat and McCain in a Republican. Most of us are not fooled, even if these wingnuts cannot admit it to themselves. The real issue is that Obama is a black man with power. That is the animus driving these people. If something ignites this kindling, it will be the flame of racism, which, sadly, is not yet extinguished in our country.