Friday, October 02, 2009

Taking aim at the constitution

I never guessed I’d be writing about gun issues in the US twice in a week’s time. Last week I wrote about people hoarding bullets. In the heated comments that followed, I mentioned the last time I wrote about gun laws in the US, some 15 months earlier.

In 2008, I wrote about what I believe is a deeply flawed—and wrong—ruling by the Supreme Court, District of Columbia v. Heller, which said that people in DC had a constitutional right to own handguns and the District had no right or authority to ban handguns. At the time I predicted more lawsuits and, in fact, the gun lobby immediately filed a legal challenge to Chicago’s quarter century old ban on handguns. The US Supreme Court has just agreed to hear the appeal, McDonald v. Chicago.

After the Heller decision, he gun lobby immediately declared victory in the battle over gun control, something what was extremely premature. The District of Columbia is not a state or territory and is legally most similar to a slightly self-governing colony: Congress can, and often does, repeal laws passed by the District. This matters because the Second Amendment, over which the gun control battle is fought, has so far been seen to apply only to Congress and the national government.

This is, in part, because the First Amendment, which guarantees freedom of speech and religion, among other things, begins with the words, "Congress shall make no law…” The gun lobby argues that the 14th Amendment extends the Bill of Rights to the states. That Amendment first declares that all people born or naturalized in the US are citizens of the US and the state in which they live, then declares, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law…"

I happen to agree with the gun lobby on that one point. It seems pretty clear that the effect of the 14th Amendment is to ensure that citizens in all states enjoyed the same basic rights enumerated in the US Constitution. The Amendment came after the Civil War, and there was a desire (and perhaps a need) to ensure that the African Americans recently liberated from slavery wouldn’t be denied the full rights of citizenship. The fact that it took more than a century to even begin to achieve that—even in the North—doesn’t change what was pretty clearly the intent.

The real debate is still over the meaning of the wording of the Second 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." Like most gun control advocates, I believe the phrase “well regulated militia” is the key; the gun lobby focuses only on the last fourteen words, even though the authors of the Constitution did not. Had those men been better writers or had editors, we might have avoided two centuries of arguments over what the amendment means.

While the City of Chicago expresses confidence that its law will survive, I can’t. The Bush/Cheney appointees, Roberts and Alito, were chosen specifically for their hard right views. The fate of Chicago’s law may ultimately rest on Anthony Kennedy, often a swing vote. Will he vote with the conservatives, as he did in the Heller case, or side with Chicago? Based on his record, he could vote either way. And how Sotomayor will vote is also not known.

Whatever happens, I doubt that this will be the last time I write about gun issues in the US.


epilonious said...

The thing I have not seen is why you don't like guns... and why your dislike of guns logically translates to the support of laws and constitutional amendments dictating that other people can't have them.

I also recall a passage from your last post: Allowing just about anyone to stockpile a huge, unrestricted personal armoury cannot lead to good things.

I've always wanted to say this: The members of American Colonies stockpiling huge, unrestricted personal armouries led to a very shitty couple of years for the British a couple centuries ago... but what resulted was Great for America... and the British eventually got over it.

And if there is fear built up by allowing citizens to arm themselves so that they might be able to forcibly resist changes they felt went too-far... well, that's sort of the point.

Arthur Schenck said...

I've never said anything about my feelings about guns, and I doubt I ever will. Whether I do or do not like guns personally is irrelevant: My argument is simply that the 2nd Amendment was never intended to give individual US citizens the unrestricted right to own guns; keeping guns was intended to be part of organised militias, what we now call the National Guard.

I don’t necessarily support banning any guns, though I do believe some should be (no private individual needs a machine gun or armour piercing bullets, for example). I see gun ownership as something the state may regulate, like driving: Not everyone may drive a motorcycle, car or truck, and those that are allowed to do so must follow a process the state dictates and must abide by the rules the state sets out.

Even something we consider a fundamental right—voting—is restricted. A convicted felon cannot vote, nor can someone judged to be mentally incompetent. So, even if gun ownership was a right—and, again, I believe it's a privilege—the state still should have the right to restrict it, including, if the democratic process so decides, banning guns. The fact that Chicago bans handguns doesn't mean that anywhere else has to—that's for them to decide through their own democratic processes.

In the current political climate, with deathers, birthers and teabaggers carrying loaded guns to presidential speeches, and some arguing for a military coup to take care of the "Obama problem", arguing that people ought to be able to have large arsenals for armed revolution is unlikely to win many folks to your side of the gun control argument.

However, since you brought it up, I think that's an irrelevant argument for individual gun ownership. Even if a right to armed revolt actually exists for citizens in a democracy, at what point is it okay for people to, as you said, "forcibly resist changes they felt went too-far"?

Some people making the argument for arming people for revolution make no distinction over how bad a change must be before they resist violently; they don't define how far is too far for government action because they believe that "freedom" means being able to violently overthrow the government at any time for any reason, no mater how minor. I categorically reject that idea.

Yes, the American Revolution turned out rather well for the US, but only because of supreme luck: The timing, during the Enlightenment, and having at its core some of the greatest democratic thinkers the world has produced. This is not then, but not just because the self-romanticising far right and far left can't hold an intellectual candle to the founders of the US: Many, perhaps most, armed revolutions end up producing less freedom, not more.

In this modern age, we have the tools of democracy to create change. I have complete faith in democracy to ultimately deliver what is right, even if it often takes far too long. The correct action for US citizens who want to "resist changes they felt went too-far" is to do so through the democratic process, and not force their solution on everyone else at the point of a gun.

If you insist people must be free to arm themselves so they can launch a revolution to force their will on everyone else, then that must also mean that others have the right to arm themselves to resist the self-anointed, self-described supposed "patriots" too, no? And if so, what you're really arguing for is the right to start a civil war. Frankly, I find that idea utterly bizarre.

Ultimately, I find the idea that American democracy is so weak that it might need to be overthrown one day because the democracy can't preserve and protect itself more than just a little paranoid. I also think that arguing that people ought to have guns because they might need them for armed revolution one day is more than just a little crazy.

If you want to discuss what the Constitution does or does not say about gun ownership, I'm happy to do so. But I utterly reject the idea that the ability to wage armed revolution is a legitimate reason for people to own guns.