Saturday, July 9, 2016

Who's Afraid of the Second Amendment?

Likely, they would be appalled by the NRA

Antonin Scalia was many things, but one thing most people can agree upon is he was a man of "faith."  The mayor of Dallas, speaking after the shooting of five police officers proclaimed that like his police chief, he too is a man of faith, which is Southern for "I am a good man."

Scalia was famous for being an originalist, which in his mind, apparently was not exactly the same thing as being a strict constructionist.  For Scalia, the Constitution should be interpreted as a reasonable man of the 18th century would have interpreted it. This means that had the Constitution said no man could be beheaded, hanged or shot, that would mean the government could not execute a man by any of those techniques but it might also mean the reasonable 18th century man might also conclude he could not be boiled alive or drawn and quartered, as what the authors of the Constitution were doing were trying to delineate humane executions. 

So, while there were subtleties  and nuances in Scalia's idea, he was still cleaving to a document, to a text, as if it were a holy scripture, and he was trying to stay anchored in "original meaning" as if that is even possible from the vantage point of the 21st century. 
Kensington, NH

Such thinking meant that in the case of the Heller vs  District of Columbia, Scalia found that the Second Amendment implied a right for any individual citizen to own a gun, virtually any gun. And yet, here is the entire text of the Amendment:

"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."

I am no legal scholar, but my copy of the Constitution is only 34 pages long and nowhere in that document can I find any declaration of rights or any passage in which the authors provide a reason for a particular declaration. 

There is only one other place  in the Constitution --the Preamble--where any sort of explanation is given, and in this case it's not to explain a particular right, but to set for the general aims of the government the authors wished to create:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

This Preamble gives the reasons, and after that, except for the Second Amendment, no more explanations. Why? Because if you are looking for a reason for why the freedom of speech shall not be abridged, you have only to look at the Preamble. But in the case of the 2nd amendment, the authors felt they had to explain that one.

  The 2nd amendment is unique in that it actually explains why the Constitution grants this particular right, i.e. because in order to have a militia, you've got to allow members of that militia to keep their guns at home, presumably, they were thinking of muskets over the fireplace, not cannon. Any reasonable 18th century American would understand that.

The insanity of saying we ought to feel bound to what men living at the time of Washington, Madison, Adams, Hamilton and Burr were thinking in their world is mind boggling. In their time, Arms mean muskets, cannon and swords. Could Jefferson, Madison or Hamilton have imagined a time when a man might order over the internet an assault rifle which could fire on hundred rounds in under 30 seconds and laid waste to an entire regiment, not to mention a police department or a playground full of eight year olds in less than a minute?  Would Washington have signed a document which would allow a man living in an apartment in New York City to acquire a thousand rounds of ammunition, a hundred hand grenades and a dozen rocket propelled grenades?  

Why would Scalia or anyone in his right mind want to tie himself to a century before amplification of the human voice, photography, television, mass communication, social networks played such a potent role in the national life?

Scalia explained, in part, that the Supreme Court is the least democratic branch of government and he was very loathe to empower 9 unelected judges to over rule the will of Congress or the elected President. So hewing closely to the text was a way of restraining the judges from making new law without the consent of the governed.
Osgood Road, Kensington, NH

Of course, this applied when the court approved of same sex marriage, approved Obamacare, approved of statutes discriminating against homosexuality, because, for Scalia, the elected bodies of the states or the Congress would never approve of this, so who was the Court to force these things upon an unwilling country?

But the whole idea of the Court and the Constitution is to say, "This is something you cannot vote about. There are limits to what can be done in the name of popular will." So the idea of having separate public schools for blacks and for whites under a separate but equal doctrine is unfair and struck down. (Brown vs Board of Education.) And the idea that a slave cannot sue for his freedom in the Supreme Court because a slave, being property and not a man, has no standing to sue (Dred Scott)--that has to be decided by a court, for better or for worse.

Of course, there is no more political branch of government than the Supreme Court. The simple expedient of reading a one paragraph description of any court case with significant social content and asking a reasonably interested citizen, like myself, to predict how Justices Alito, Thomas, Roberts will vote and how Justices Soto-Mayor, Kagan, Ginsberg and Breyer will vote, with 90% accuracy provides proof enough.  In fact, there is no more predictable branch of government than the court.
Exeter, NH 

Reading the most excellent "Fallen Founder" by Nancy Isenberg, about Aaron Burr is a lesson in just how different these 18th century men were from men today. Of course, there are basic threads of humanity which connect them to men of the 21st century, but their ideas about honor, sex, propriety, loyalty, freedom of speech, gossip, economy are all very foreign to life in the 21st century.

They were doing the best they could, and they learned from the oppression of British rule as well as from the enlightenment, but they were very different from us. If I could time travel back to Philadelphia in 1776 to 1783, I would likely find myself disoriented and I would have to remain very quiet, for every sentiment I expressed would betray my alien status.

Likely, I would feel more comfortable talking to Lincoln, Grant, Sherman, Thaddeus Stevens, Harriet Beecher Stowe and Emily Dickensen. (Oh, I'd love to visit her in Amherst.)  But the men who wrote our Constitution--I'd be biting my tongue.

What this country really needs is not a good 5 cent cigar. What this country needs to do is to face reality. Reality in this case means we recognize the Court is what it has always been: Just another political instrument.  Justice Scalia was right to worry about the un-elected nature of the court, about 9 entrenched, possibly isolated judges making rules and by those rules, laws for the country. But the way Scalia saw to deal with this was to try to rationalize his gut votes as the will of Jefferson and Hamilton.  But what we need to do is to tie the Supreme Court to the will of the people as determined by elections:  When a new President takes office, give him the right to appoint justices who will vote on the court. 

 We need a new process for the Supreme Court--9 voting justices, 2 appointed each term by the President, only the most recent 9 voting.  If a President gets two terms, he gets 4 of 9 justices. If we have a liberal President, a Franklin Roosevelt, he gets justices who will not block his recovery programs. If George W. Bush gets elected, well he can try to move the country to the right and the Supreme Court will cheer him on. But at least we are not dealing in fantasy--nobody who watches the court can believe these are simply umpires calling them as they see them.  Judging cases is not governed by a defined strike zone; it comes down to judgments and those judgments are ingrained and embedded in the philosophy of the Justices. Let's not try to deny that, but let's not be stuck with the same justice for 40 years. Nothing in the Constitution would require an amendment to do this. No number of justices, nothing about their voting status is specified.
Cape Fear, NC

We need to disarm our citizens to the extent an extant 300 million guns will allow, but at the very least we need to control the flow of bullets. 

We'll need a Supreme Court which will allow this to happen.

And we need to disarm our policemen, as the Brits have done successfully, so our cops are no longer viewed as a lethal threat but as benign social workers. 

Bernie talked about a revolution because he wanted to reign in Wall Street. That was no revolution. What I am talking about--that is revolution.

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