Hijacking the Second Amendment

I can’t get it out of my mind.  The image of a man dressed all in black armed with a device designed to kill men in war pulling a trigger causing bullets to take the life of six and seven year olds.  We all agree, I think, that something is really, really wrong with this picture.

Since that tragic event, there has been a feverish search for a rational theory on how this has come to pass. Theories abound.  They range from the mad man theory, to the assault weapon theory, to the 2nd amendment theory.  You will be familiar with all of these lines of reasoning and others not stated herein.  You’ll be pleased to know that I’m not going to make you suffer through yet another analysis of each of them. but my own view is that there is a modicum of truth in all of the popular theories being circulated, but none of them get to the real root cause.

Of course you know that it’s not my intent to trivialize the unending horror of gun violence in America, but I’ve tried to look at the issue from the 40,000 foot level.  Perhaps large context will suffice where details have failed.  It’s from this point of view that I can report to you that my root cause analysis leads me to the incontrovertible  conclusion that we can safely lay the blame on….Rhode Island.  Yes, Rhode Island.

Surely you will recall from your high school civics class that from the time that we declared our independence from the dastardly Brits in 1776, our forefathers  struggled to find a way to govern ourselves.  The initial governing document, otherwise known as the Declaration of Independence, was more of a statement of the principles upon which our republic would be built rather than a system of governance.  Shortly thereafter the Articles of Confederation was drafted by representatives of the original thirteen colonies, but they could not muster the will to actually approve this document until almost five years later in 1781.  In the meantime, we just muddled along.  One of the covenants of the Articles was a provision requiring unanimous approval to the thirteen signers before a more definitive document of governance could be adopted.

The Constitutional Convention of 1787 in Philadelphia was convened by only twelve of the colonies, and you guessed it, the only one not attending was Rhode Island.  As we know this constitution was focused on what the government could do, not what it could not do (at least with respect to individual rights), and, unfortunately it did not apply to everyone.  The latter issue took us about 135 years to address, but the first issue was paramount to a number of the colonies and leading thinkers of the age.  What was wanted by many was a “bill of particulars” which would be a specific declaration of individual rights patterned after the British Bill of Rights of 1689 which, among other things, precluded the crown from establishing a standing army in times of peace.  The federalists led by George Washington and Alexander Hamilton opposed such soft headed thinking and lobbied for a strong centralized government with no specific articulation of individual rights.  The anti-federalists, as you might imagine, wanted just the opposite and were exceedingly leery of a central government that might trample on the new freedoms and rights that had been hard won from the British.

While the delegates were perfectly willing to throw out the provision of the Articles of Confederation requiring unanimous consent for a new document, they sorely wanted the approval of all thirteen of the colonies for reasons that you might imagine.  They received ratification from eleven of the thirteen and the new government was set up for business.  Of the two recalcitrant colonies, only Rhode Island made it clear that they would not vote to ratify until a supplementing bill of rights had been adopted by the congress. And that’s exactly what happened.  Rhode Island agreed to ratify, but only after James Madison had offered the amendments, which came to be known as our Bill of Rights, to the first session of Congress to which they agreed on August 21, 1789.  It took another two and a half years before these new amendments were themselves ratified by the states.

You can see that I’ve vastly over simplified the state of play between the Federalist and anti-Federalist positions with respect to what should or should not be in the Constitution, and not surprisingly, this rift in political philosophy continues even today.  Enumeration and definition of the  powers which are reserved for the central government is a question that has dominated our political conversation and has provided good pay for legions of lawyers who argue the issues before the Supreme Court.  By the way, the dominion of the Supreme Court as the final arbiter of constitutional questions was not fully resolved until it was determined in Marbury v. Madison in 1803 that the federal judiciary was the final arbiter of constitutional questions, and could, if it so chose, nullify in part or in whole, a dully enacted law.

Of the ten amendments so important to Rhode Island and the anti-federalists were two which illustrated clearly their antipathy toward the central government and, in particular, the deep suspicion of a force of arms controlled by a central executive of a central government. These are, of course, the 2nd and 3rd amendments which read:

“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.”, and

“No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in the time of war, but in a manner to be prescribed by law.”

I’m not going to spend any time on the latter, but you can see, it gets more or less to the same issue.  As to the 2nd amendment, even Madison acceded to the notion that at that time in our history an armed militia (albeit well-regulated) of ordinary citizens was central to the rights of people who might be confronted by a centralized government with a powerful standing army.  In fact, the Army of the United States, if it can be called army, consisted of 800 souls who often had to wait for their pay checks and bring their muskets from home. The militia concept, rather than a standing army was thought to be the final guarantor of our freedoms and became the centerpiece of our national military establishment, such as it was.

There were six other drafts of the wording of the 2nd amendment.  All of these are available for public view in the National Archives, and all of them contained the prefatory premise that a militia was necessary to our well being and was a prefatory factor in demanding the right to bear arms for our citizens.  It certainly wasn’t a casual afterthought.  It was the essence of the idea borne from the legacy of struggles of the British parliament against the forces of an all powerful crown, that only the common man, with arms in hand, could guarantee his own freedom.  It is an idea that I’m sure both you and I would have embraced at that time as well.  I’m just not sure how relevant it is today.  How many of you think a group of our fellow citizens, even if armed with AR-15’s, would be much of a deterent to a battalion of the 1st Armored Division.

Nothwithstanding the foregoing history of the 2nd amendment, I’m pretty much with  anyone who wants to own a musket, a flint lock pistol or even a cutlass.  These, after all, were the “arms” that Madison and the other framers wanted our citizenry to have access to.  And if you’re in a militia, as far as I’m concerned, you could even have a cannon. Of course, we haven’t had militias for over a hundred and twenty-five years, so I’m not too worried about distributing very many cannons.

Which brings me to  our current situation on the 2nd amendment, which, oddly enough. has substantially changed in the last five years thanks to the good offices of Anthony Scalia and company.  Surprisingly the first case to reach the Supreme Court on the issue of whether the 2nd amendment protected the right of individuals to bear arms in the face of local legislation which sought to limit this right was not heard until 2008.  It is the famous (or infamous) case of Heller v. The District of Columbia.  Anthony Scalia, who says that he only believes in the “originalist” interpretation of the constitution, wrote in his majority opinion that while the “militia” clause does describe a condition precedent to the following “right to bear arms” wording, the right to bear should not be limited by the prefatory clause.  In other words, he opined, and four of his worthies agreed, that there were other reasons than the one actually cited in the amendment that gave rise to the individual right to bear arms. In fact, in a supporting opinion, one of his colleagues said that the right to bear arms was a “natural right”.  Hmmm.  I kind of sounds like they were trying to surmise what Madison might have, but didn’t say.  Not exactly a line of reasoning that comports with the “originalist” theory.  But there you are.  That’s how we got where we are today.  Oh, I forgot.  In an amazing reversal of field, Scalia, in perhaps the only reasonable thing he’s ever opined, concluded his ruling with the notion that the individual right to bear arms doesn’t mean that the government cannot limit that right reasonably.  To wit:  we can keep guns out of the hands of crazy people if we want to, and we don’t necessarily have to allow individuals access to RPG’s on M60 machine guns.  Presumably, this right of reasonable limitation could even allow the government to preclude ownership of high capacity assault weapons; although, I doubt that our political leaders have the gumption to confront the NRA on this.

So back to Rhode Island.  Because of them (and the anti-federalists), both opposed to a standing army, and wanting an enumeration of specific rights not found in the constitution, we wound up with a compromise solution of ten amendments including the now much debated 2nd amendment.  We have one gun for every man, woman and child in America and weapons in the hands of ordinary citizens that could have wiped out the entire armed forces of the United States in 1791 in fifteen minutes or so.

So the question I leave you with is WWJMD?  You know the format.  It means what would James Madison do if he were confronted with the situation we face today where we have 30,000 of our “ordinary citizens” killed every year with weapons he could not have even envisioned.  I suspect he would have written the 2nd amendment a little differently.










The Supremes

Perhaps I would be safer writing about those other Supremes.  You know, the Diana Ross ones, but I’ve never been one to shirk my duty.  One might think it presumptuous for me to opine about the holy of holies, the highest court in the land, but I’m no stranger to the Court, the Constitution, or its rulings thereupon.

Unlike most of the great unwashed in our land, I’ve actually studied the relationship between our Constitution and the law as interpreted by the Court.  For I, you see, took Constitutional Law 101. Continue reading

Out of the Mouths of….

The freedom of speech is a wonderful thing, particularly if it’s preceded by thought. Unfortunately, often it’s not, as we’ve seen in the recent town halls around America.

I’ve been watching political town halls late.  Yes, I know that it’s geeky and more than a little strange.  I would counter that it’s political theatre of the highest order.  Wow.  The anger, the finger pointing, the squinting of eyes, and yes, screaming and shouting. It makes you think that maybe we got the 1st Amendment wrong.

None of us who are drawing breath and have electricity can have avoided images of citizens remonstrating, protesting, shouting, and arm waving at their political representatives, and the cameras lurking nearby at these so called Town Hall meetings.  These gatherings were ostensibly intended to engage in a civil discourse about health care reform, and for our political representatives to show that they’re on the job, but they clearly took on a different, more desperate, angry character.  In the various clips of video I saw, the situation tended to be so boisterous that one could not figure out what was being said by whom.  Finally one came across the cable channels and then You Tube that gave a more measured glimpse of what evidently is the foundation of the vituperation being shouted out.

“We’re not just angry about health care,” the angry lady reported in a fairly well modulated voice.  “We’re angry about the government taking our freedoms away”, she said in a voice raising to the level of a fundamentalist preacher on the verge of saving some souls.  “They’ve taken our money and given it to rich bankers,” she accused no one in particular.  They won’t let my children learn about god in school” she added piously.  “They won’t let our brave soldiers win the wars they’ve been sent to fight”, she opined militarily, “and (dramatic pause here) they are taking away our constitutional rights.  We want to go back to the constitution of Jefferson, and we want it now,” she ended emphatically.  Much cheering and stomping of feet in the background from her cohorts of less elegance.

Wow!  At least this lady  knows what she wants.  And then I thought, hmmm, Jefferson did the heavy lifting on the Declaration of Independence, but Constitution…I think not.  Wasn’t that James Madison and the delegates of the Constitutional Convention?  As a matter of fact, I believe TJ wasn’t even around at the time.  Well, he was alive, but he was living large in Paris as the US Minister to France, trying to finagle them into secret alliances and to borrow enough money to keep our young democracy afloat.  But I got her message.  She wanted to go back to the original intent of the Constitution.  The way it was first writ.  Back to the good old days so to speak.

I’m sure all of you, in-the-know readers, are aware of the details of our journey from  Declaration of Independence in 1776 to the ratification of The Constitution of the United States in 1789, so I’ll not bore you with a reprise of events.  I will say, however, that our original constitution fell well short of what many then, and most everyone now, would believe to be a final framework for democracy; the fine balance between federal and states rights, and the rights enumerated for our citizens.  In fact, TJ was so put out about the failure of the Constitution to enumerate individual rights that he embarked on a letter writing campaign from afar to attempt to improve the fated document.  Alas, to no avail.

Indeed, even Madison’s first draft contained language that would have allowed the “National Legislature” to veto any state law they couldn’t stomach…..and there were plenty that were distasteful.  Obviously, that one didn’t make the cut, but I don’t think that’s what the angry lady was referring to.  Roger Sherman, said to be amongst the cleverest legislative horse traders of his day, maneuvered a compromise (in todays parlance, a bipartisan effort) which had a few shortcomings of its own.  To wit:  Art. 1, Sec 9 allowed for the continued importation of slaves, and Art IV, Sec 2 made it illegal for even those in free states to give succor to runaway slaves, while Art. V guaranteed that there could be no amendment prohibiting slave importation until at least 1808.  Clever horse traders these Yankees.  Do you think it could be this then that the angry lady was wanting back?  Could she have been lobbying to reconstitute the slave trade permitted by “Jefferson’s Constitution”.  I don’t like to think so.

Or perhaps our angry lady was pinning for the good old days manifested by our constitution which precluded all but white males over the age of twenty-one from voting.  One would think that she wouldn’t want to give up her vote, but you never know about angry white ladies.  Maybe she forgot that our constitution was not amended to allow for women’s suffrage until 1920.  Heck, that’s not so bad.  We didn’t give native americans living on reservations the right to vote until 1947.  And although the Constitution was amended in 1870 to say that our citizens could not be excluded from voting on the basis of race, we all know that all southern and many other states did exactly that until the Constitution was amended again in 1964 to ban the poll tax and the Civil Rights Act was passed in 1968.

Ah, you say.  The angry lady in question was surely referring to the Constitution as amended by the Bill of Rights (first ten amendments).  This  is the Constitution of Jefferson to which she wants us to return.  Once again, I must say fie on this construction as well.  There is no question that the aforementioned James Madison was the author of this excellent set of ten addenda to our Constitution in 1791.  I’m sure, however, that some of the rights enumerated in the first ten are important to our angry lady.  I’m absolutely positive that she cherishes the 1st amendment which vouchsafes her right to say pretty much anything that is planted in her otherwise empty head without fear of government sanction.  Likewise she seems to be the type that might well want to own and carry weapons of some destruction without bothering to join the militia.  I suspect that no one has asked her to quarter troops lately, so she’s probably not focused on that particular right espoused by Jefferson and others. I’m now plenty confused.  I can’t figure out which form of the Constitution that she wants to return to.

I don’t know if the 8th amendment was intended for the prohibition of cruel and unusual punishment to cover banishment for speaking before thinking, but I would hope not.  For people like our angry lady (and her colleagues of the opposite gender) strike an evil blow to the ideal of civil discourse, and should be punished accordingly.

I’m thinking the best and most apt punishment would be to ignore them completely.  And right after I use her to make my point, I’m gonna do just that.

PS.  Did you know that the Bill of Rights originally contained twelve articles, but two didn’t make the cut?  Only the most anal of you could possibly hope to know this bit of trivia.