The Right to Bear ArmsPosted by Jim Newman on February 25th, 2013 – 2 Comments – Posted in politics, Uncategorized
In a previous post I quoted Chris Rodda’s article on David Barton’s book on the second amendment. Aside from his bullshit, the question is does the Militia statement relate to the rest of the Second Amendment. Also, whether bearing arms means a citizen can have arms for nonmilitia purposes. Frankly, as an aside, I would follow the Swiss and make every person enlist in some way, com or noncom, and train every young man, or person, in armed defense, and they would keep their military accouterments at home in case of war–please, don’t send me hate mail. I also think generals should lead as in the Israeli army and not hide behind their desks. Oops, I did it again; this article is about the right to bear arms and not the responsibility to bear arms.
It is true the Supreme Court disambiguated the term but Scalia, who wrote the majority opinion, has often been quite open that he has a political agenda. Last July he put more fine a point on it. I only say this because I do consider him and his ilk to be willing to change the constitution as they please in spite of his insistence, they (whoever they are) are returning to original intent. First the argument for detachment.
“Oedel goes on to argue that since the Second Amendment begins with the phrase “A well regulated Militia, being necessary to the security of a free state,” that there’s reason to believe the right to keep and bear arms was meant to be exercised in connection with a government-sponsored militia. To the contrary, in the Heller decision, the majority found the clause to be merely “prefatory.” For those of us who do not teach constitutional law, prefatory means of, relating to, or constituting a preface (or more simply put, located in front). Further, the court found the clause does nothing to limit the scope of the “operative clause” of the amendment, namely, the right to keep and bear arms.
“Ironically, the court used this “detachment” to affirm the right of the government to ban from private hands certain sophisticated weaponry that might be useful in military service but that are unusual in society at large. Oedel is wrong to conclude, however, that this grants the government broad power to ban guns in common use because someone has given them a menacing name.
The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.
Paul Finkelman the noted legal scholar writes extensively on how it is about the Militia. He throughly deconstructs Scalia’s argument by showing how these words are part of the amendment and how other federal laws support the inclusion of it.
He (Scalia) rests much of his case on an analytical argument of the language of the Amendment that is at best confused, and on an historical argument that is limited and wrong headed.
A Milita was never meant as vigilante war protectionism. Militia was always meant as under federal authority giving the feds vast lee way in what is allowed in terms of a weapon, arms.
“Article I, Section 8 of the Constitution is extraordinarily specific in endowing Congress with the power “To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
“The term “militia” is also to be found in Article II, Section 2 in which the “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
“In other words, the United States Constitution handed to Congress the power to call upon those to whom they had given the right to keep and bear arms to form a disciplinary force that ultimately answered to the President in his role as Commander-in-Chief of the military. The power to appoint officers and train militia members remained under the domain of their respective states, but in regard to who possessed final word over calling for militias to perform the duties of protecting the freedom of Americans from internal revolution and external invasion, the issues of states’ rights has absolutely no bearing.
The beginning of the post on Odel,”common at the time” contradicts what Scalia said. Originally, he said rocket launchers, yes, later no, penultimately, maybe, and finally, carefully. Scalia is reaching way out there, confused. Bare arms, bear arms, aaah, whatever.
“My starting point and probably my ending point will be what limitations are within the understood limitations that the society had at the time,” he said. “They had some limitations on the nature of arms that could be borne. So we’ll see what those limitations are as applied to modern weapons.”
“The 180 degree turn in how the Second Amendment is to be interpreted and how that interpretation will affect all future gun control legislation rests primarily upon Scalia’s contention that while the writers did take the unprecedented step of providing a specific purpose for the right to keep and bear arms, the necessity for a well-regulated militia should be viewed as just one example of that purpose. It is worth keeping in mind that Antonin Scalia is the very same Supreme Court justice who suggested that any weapon that can be carried in one’s hand may be subject to Second Amendment protection, even if that weapon is capable of launching a rocket that could knock an airplane out of the sky.
Without taking too much more space here, it is clear the US needed to protect themselves from citizens forming vigilante militia groups that could become traitorous, as well as enlist citizens to militia. With the advent of far superior weaponry, it would be difficult for any group of citizens to form a legally effective revolution but they still could now do tremendous damage. Unfortunately video media makes killing people look easy and belies the difficulties of modern war fare.
This terrifies many common conservatives, rednecks or old school, who would wish for the continued ability to revolt against a government they believe has become corrupt, or is after them.
Homemade explosives, incendiary devices, many can be hand carried and much protection is covered by regulating the materials that comprise them. Nevertheless a suicide bomber could have a devastating effect simply be doing it near officials. We tend to say we hate suicide, eschew suicide bombing as tactic, but we admire the soldier that dives on the grenade to save his pals.
As such, the best means of protecting the government and citizens is to maintain an armed militia separate from citizens with careful regulation to prevent military takeover. The disparity of weapon effect from a technological view will always problematize the choice of allowed weapons but an ideology would be better control. That is essentially served by the ultimate federal control of militia. It’s not about hunting and it’s not about personal protection. It’s about who has the power to say whom and with what.
In an arms, weapons, sense idiotic talk about taking guns to DC, harming a president, and vigilante law and order (shoot first, talk later; guns in schools; guns at market; guns everywhere) are more dangerous than the weapons discussed, and pander to little boy fantasies of grown ups. Emotional maturity is most important as it will slide under the so called mental health screen. Concurring police who say if Joe had had a pistol Suzy wouldn’t have been shot are simply wrong–only isolation or a group of well-trained security people can prevent an assassination. If you want security go into Internet safety.
Bruce Schneier covers this issue in his book, “Liars and Outliers; Enabling the Trust that Society Needs to Thrive.” It is simplistic to think the people’s (whoever they are) right to bear arms will resolve security issues.
Liars and Outliers reaches across academic disciplines to develop an understanding of trust, cooperation, and social stability. From the subtle social cues we use to recognize trustworthy people to the laws that punish the noncompliant, from the way our brains reward our honesty to the bank vaults that keep out the dishonest, keeping people cooperative is a delicate balance of rewards and punishments. It’s a series of evolutionary tricks, social pressures, legal mechanisms, and physical barriers.
In the absence of personal relationships, we have no choice but to substitute security for trust, compliance for trustworthiness. This progression has enabled society to scale to unprecedented complexity, but has also permitted massive global failures.
At the same time, too much cooperation is bad. Without some level of rule-breaking, innovation and social progress become impossible. Society stagnates.
Jim Newman, bright and well