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View Diary: A national conversation about gun control (198 comments)

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  •  Here's Gary Wills (3+ / 0-)

    :  http://www.nybooks.com/...

    (Found this via Deadspin of all places).  The key for me is Madison's original draft:

    The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
    Notice how "bearing arms" is used in the third clause in a strictly military sense.  This sentence was, of course, deleted, and the first two reversed and unsubstantially modified, but this is as explicit as possible an understanding of what Madison understood by "bear arms."  Wills goes on to note that:

    (i) "keep and bear arms" should be understood conjunctively, as in there are not separate rights to bear arms, militarily and to "keep them," which is different from "storing them at your house, in any event;

    (ii) in a military context, "the people" is narrower than the term is used in the 4th amendment.  People who couldn't vote or own property, or were "imbeciles" or "scoundrels," or possessing of womenly attributes, wouldn't be eligible at that time to keep and bear arms, as properly understood, but could remain secure in their persons; and

    (iii) the Amendment can't reasonably be read to supersede the power of Congress to create a standing army (or "Militia") or to create an affirmative right to wage war on the U.S., a la the treason clause.

    So, what is the Amendment doing there?  Wills argues that, like the Third Amendment (and to which one might add the 9th and 10th), it was forceless language designed to co-opt the distrust of a standing army.  I think it does a bit more work than that, in that read conjunctively with the militia clause, it can say that when the Congress doesn't "call up" the militia it doesn't automatically disassemble (the better to suppress slave rebellions).  But it remains well regulated, or else Reconstruction was unconstitutional.

    Other than the fact its language is more suggestive, the Second Amendment is a historical curiosity, like the right against having troops being quartered in your homes.  (The government can achieve much the same result by taxing you and building its own barracks, though the food's not as good.)  

    Is there still a right to hunt, or in-home self defense?  Surely -- common law, tradition, the 4th and 5th amendments, and most importantly, a political check.  Though they'd probably be better off getting a junkyard dog (as noted Canadian and warmonger David Frum suggests).

    And here's the coup de grace -- even if the original understanding of the Second Amendment is right, i'm not sure it's absolute.  There's a lot of bad understanding of law that says that if something is in the Constitution it's an absolute right.  Well, the 4th amendment allows searches as long as they are reasonable.  The Equal Protection Clause says game on with respect to non-suspect classes.  The First Amendment allows a range of classifications of speech restrictions and, in some cases, limitations by types of speech.  To say it is absolute is completely circular.  Even if McDonald and Heller are right (and this doesn't even get into the issue with incorporating the 2A into state laws), they didn't even broach the issue of what happens if someone wants to take a gun outside of their house.  Those cases can be correctly decided and one can still take the position that it's up to the legislature to address the empirical question of whether guns on the aggregate, when taken into town, produce desirable ends.  Which is a complex way of saying, courts hands off.

    Difficult, difficult, lemon difficult.

    by Loge on Sat Dec 15, 2012 at 08:57:03 AM PST

    [ Parent ]

    •  Wills wrote in 1995 (4+ / 0-)
      Recommended by:
      Loge, The Marti, annieli, murrayewv

      so his piece should be seen as an artifact of pre-Heller and McDonald thinking about the Second Amendment.  In other words, it allows us to see just how radically SCOTUS, under NRA influence, has revised our understanding of the meaning of the Constitution.

      Any claim to "originalism" by the court's hard right-wing majority (at least so far as gun rights are concerned) is laid bare as a sick joke on the American people -- an irony to which the twenty dead children in suburban Connecticut bear silent, damning witness.

      When the union's inspiration /Through the workers' blood shall run /There can be no power greater /Anywhere beneath the sun /Solidarity Forever!

      by litho on Sat Dec 15, 2012 at 09:15:01 AM PST

      [ Parent ]

      •  he saw the writing on the wall (0+ / 0-)

        Clinton managed to muster up the votes for a crime bill and assault weapons ban, after Waco, so the nuts had to change the conversation.

        Difficult, difficult, lemon difficult.

        by Loge on Sat Dec 15, 2012 at 09:19:02 AM PST

        [ Parent ]

        •  Well, one of the books he reviewed there (1+ / 0-)
          Recommended by:
          annieli

          was by Wayne LaPierre, so he was directly addressing the wingnut arguments that the Court eventually came to accept.

          When the union's inspiration /Through the workers' blood shall run /There can be no power greater /Anywhere beneath the sun /Solidarity Forever!

          by litho on Sat Dec 15, 2012 at 09:22:05 AM PST

          [ Parent ]

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