Sunday, December 16, 2012

On the Second Amendment

To write a post about the regulatory confusion and moral insanity of America's gun laws would be redundant at this point. Since the Newtown mass shooting every commentary writer in America has weighed in already, either demanding stricter gun controls or offering bromides about politicizing this tragedy. (By the way, the best reads to my taste are Nick Kristof's and Garry Wills'.)

Instead let me begin with a couple of images:

Behold the .223 Semi-Automatic Bushmaster assault rifle, one of three semi-automatic weapons Adam Lanza brought with him to Sandy Hook Elementary School. It is, even to an untrained eye, a different sort of apparatus than the weapon of choice during the American Revolution, the flintlock rifle:

The former in its semiautomatic form fires 45-90 rounds per minute, which explains why authorities in Newtown reported finding "dozens and dozens" of shells at the murder scene. The latter fires 3 rounds per minute, assuming the colonial Minuteman wielding it has some skill with powder and a ramrod.

Any investigation of gun violence in America reveals that this nation has a dramatically different relationship with guns than other industrialized nations. Even other nations where gun ownership is allegedly high, like Switzerland and Israel, have much stricter gun control laws. The reason for America's outlier status is of course the 2nd Amendment, drafted and ratified at a time when the flintlock rifle was the standard, 3 rounds per minute was fast, and the frontier still existed. It is this short text that gun rights advocates cling to with maniacal devotion:
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.
Let us all thank the Anti-Federalists for that bit of wisdom, which in the last few decades has been misinterpreted, abused, and disfigured to advance a culture of guns and violence.

The primary problem with the 2nd Amendment is its shelf life. How we make sense of the freedoms enumerated in the Bill of Rights has always shifted as time has passed, and Americans have generally looked to the courts (for good or for ill) for the proper interpretations. These interpretations, however, emanate from bedrock truths within the text itself. People across the ideological spectrum might reasonably argue about the application of the protection of free speech in modern American society—can I tweet "fire" in a crowded theater? (seriously, can I?)—but regardless of anyone's particular answer, few people doubt that vigorously maintaining freedom of speech is essential to the health of the American republic. That truth gives the 1st Amendment life for all time. History, however, has made a mockery of the 2nd Amendment. There are too many modern free states in which gun ownership is not protected. These free states exist and persist without enshrining the right to bear arms. There is simply no longer any truth in the logic of the 2nd Amendment.

Most of us know this. Except for right-wing whackjob survivalists out there, who actually believe they will lead a successful revolution against a tyrannical US government, the rest of us, as Josh Marshall notes, are pretty certain we can't realistically fight off the armed forces of the federal government. Voicing that sentiment in political debate is a harder task. To acknowledge that the Framers of the Constitution may have laid an egg in the middle of the Bill of Rights is simply anathema for devotees to an American cultural mythology who revere the infinite wisdom of the Founding Fathers.

It might help to know that this issue about the efficacy of militias was contested even in 1789, when the ratification debates over the Constitution were in full force. In order to reassure Anti-Federalists that the new Constitution would not confer tyrannical power to the new federal legislature that would be empowered to raise an Army and Navy, James Madison wrote in Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
Alexander Hamilton, more impatient with the distrust of federal power and perhaps more persuasive on this particular subject than Madison, offered a contrary perspective in Federalist 25:
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.
Despite their differences, both Madison and Hamilton were engaging the question of bearing arms in the same context as everyone else in the ratification debates did: a question about the right of the collective people to guard against the threat of a standing army. There was never a discussion about the right to bear arms as an individual right of private ownership. Never.

Yet a sacred and inviolable individual right is exactly what Justice Scalia finds in his extraordinary majority opinion in the landmark 2008 case District of Columbia v. Heller, which invalidated Washington D.C.'s strict handgun ban. I say "extraordinary" because Scalia discovers this individual right and detaches it utterly from the clause about militias without compelling historical evidence for doing so. In this argument, the phrase "bearing arms" has nothing to do with military service, but just means to own a gun. The beauty of this steaming pile of a decision is to rid the 2nd Amendment of its raison d'etre, which the historical record makes clear: to protect the people from the tyranny of a government with a standing army. After Heller, people have a right to own a gun because... well, just because the Constitution says so. (Except it doesn't.) Scalia argues: has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” 
Where did Scalia find traces of this "pre-existing right" for Americans? The Glorious Revolution in 1689! Only a century removed from the actual ratification of the Constitution, and in another country. One might think Scalia would be better off finding evidence closer to 1789, but that turns out to be quite difficult. For instance, the 1774 Declaration and Resolves on Colonial Rights of the First Continental Congress, precisely the place one would imagine the aggrieved colonists would demand this right, makes no mention of it. The word "arms" never appears in that document.

Without any evidence in the national debates, Scalia turns, like all good conservatives, to the states for succor. Pay dirt. He finds four state constitutions that invoke the language of self-defense in a "bear arms" article. But crucially (and somewhat dishonestly) he never quotes those passages in full, which link their meaning to a wider context of military service and the danger of standing armies, just like the Bill of Rights does. For example, the appropriate passage from Vermont's 1777 Constitution reads:
That the people have a right to bear arms for the defence of themselves and the State--and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.
Scalia has ignored here that the "right to bear arms" was established as a bulwark against tyranny, not an individual right of ownership for its own sake. He's also ignored that nine other states could have cared less about this right regardless of the reason.

Justice Stevens makes the case against Scalia far better than I can in the minority opinion. So too does Justice Breyer in his dissent. And so does P. A. Madison at The Federalist Blog. For that matter, Garry Wills made the case against Scalia nine years before Heller was decided in his brilliant book A Necessary Evil. Wills, taking on the NRA interpretation of the 2nd Amendment, anticipated exactly what Scalia would do in Heller:
The tactic of of the private ownership interpreters is to ransack and document no matter how distant from the ratification debates, in the hope that someone, somewhere, ever used "bear arms" in a non-military way, as if that would change the overwhelming body of military usage.
Actually Wills put it in tighter language earlier in this chapter, observing that the phrase "bear arms" takes on absurd meanings if not used in military contexts. He stated, "One does not bear arms against a rabbit."

All of which is a roundabout way of saying this: to look for real gun control regulations after the massacre at Sandy Hook is to demand from Congress and from state legislatures laws that five Supreme Court Justices believe unconstitutional. (There are lesser restrictions that might survive and might help, but I do not believe they will stop the violence.) These Justices are adherents to the same ideological creed that plagues nearly the entirety of the Republican Party. Scalia is not a stupid man. Nor does he believe he is dishonest, though he is. Only ideological devotion facilitates such a distorted interpretation of historical evidence that lays the entire nation at the mercy of a twenty-seven word sentence that no longer makes any sense.


  1. Excellent bit Chris. Love that last line, and wonder about all of the other possible examples to which we are now wedded.

  2. its how scalia was raised of course he is not a stupid man, nor dishonest incidently we do not concent to the entire nation being at mercy to a twenty-seven word sentence