Sunday, January 6, 2013

Let's Repeal The Second Amendment?

Yesterday rj sent me an article authored by Kurt Eichenwald, presented on the Vanity Fair site entitled “Let’s Repeal the Second Amendment “. After reading this, and other articles proposing this (even some that actually proposed the elimination of the whole Constitution completely!), I felt compelled to put some of my thoughts down. The issue of gun control is a heated and emotional one, one that I am convinced will never actually be argued logically and rationally by anyone on either side of the debate. The arguments become even more heated in the aftermath of tragic incidents such as those that have occurred recently.  Numbers and statistics are thrown out from both side in defense of their positions, all of which appear on the face of it to be both accurate and legitimate. The purpose of my post here is not necessarily to argue the merits or validity of the numbers presented, but since Eichenwald throws them out in his article I feel it necessary to address this issue.

When defending one’s opinion (on any subject), it is easy to take statistics and present them in such a manner to show that an argument is the correct one.  On the gun control issue my own research seems to indicate that the statistics presented by each side are inconsistent with each other, and with the official statistics they claim are reported by the various governmental agencies that are charged to compile and publish them.  This is not a phenomenon that is unique or exclusive to the gun control debate, it is pervasive in practically every aspect of life, from corporate financial reports to government economic reports.

Being the skeptical person I am, whenever I see numbers being thrown out, I attempt to make a concerted effort to review the claims from both sides at the sources themselves, mostly at the FBI and Bureau of Justice Statistic’s websites since they are the agencies that are the primary collectors and compilers of this data in the US.  I would challenge you to do the same rather than accept the numbers and conclusions drawn from them by the pundits from either side of the issue.  Those statistics themselves are often inconsistent not only between those various agencies, but also within each agency’s own publications.  I am by no means immune to looking at and interpreting that data in a way that would tend to support my own personal bias myself to the argument over the 2nd Amendment and gun ownership, since I am both a gun owner and a defender of the Constitution.  That being said, the argument at hand is repealing the 2nd Amendment, although my personal opinion is that Eichenwald is really arguing for a rewrite of that section of the document.

In presenting my rebuttal to his feeling that a rewrite is necessary I am going to quote the majority opinion written by Justice Scalia in DC v Heller a great deal since that seems to be part of the basis of Eichenwald's arguments.  I would encourage you to read that opinion yourself in it's entirety, since although you might find it tedious and possibly even a bit boring, it is well argued and well referenced.  Since it’s been often misquoted (and misinterpreted), you would be well served to review it yourself.

Eichenwald makes many references to the NRA and its seemingly aggressive pursuit to quash proposed and existing legislation that would prohibit the mentally ill from owning firearms.   While I have no doubt that the NRA does aggressively pursue and lobby gun rights issues in the defense of the 2nd Amendment, (that is their major mission after all), I sincerely doubt that they are engaged in the purpose of making sure that the mentally ill (or felons) are guaranteed the same rights under the 2nd that the rest of the people enjoy.  Most likely the NRA's lawyers found items within current or proposed legislation that clearly were unconstitutional (in their opinion) and/or allowed for a liberal interpretation by a future court case that could limit ownership to more than what those laws were intended to address.

As a matter of full disclosure here, I am a Life Member of the NRA and am quite familiar with their legislative actions.  I am inundated by emails and snail mails providing me with their current activities (and all begging for money as well, of course).  I actually read these rather than just taking the third party opinions of them.  I will state that although I am generally a supporter of their efforts, I do not agree with all of their policies.  I also find the legislative alerts to be on the verge of alarmist and playing to the emotional side. Being in sales, I know that people buy on emotion, not logic, so I do not find this tactic in any way surprising.  Since I subscribe to what would be classified as "progressive" and "liberal" publications I can report that I find they are not any different in their alarmist pleas for support on their calls to actions (and money, of course).  For those that will automatically accuse me of being a neo-conservative, I subscribe to progressive publications because I'm also very interested and supportive of many causes that my staunchly "conservative" friends would call progressive and liberal.  If one must pigeon hole me, the closest fit I can find for you is a minarchist, or a bleeding heart libertarian.

To the point at hand, Eichenwald presents his new Amendment as follows:

"Because a well-trained army of ordinary citizens is necessary for the security of the individual states that constitute the United States of America, the right of the people to bear arms shall not be infringed."

This rewrite opens the door to any future government to decide that the persons allowed to be the owners of firearms would only those that own them for the specific purpose of being in a “well-trained army”.  Despite his contention that he would allow the private ownership outside of the context of his new Amendment, this rewrite totally ignores the right to a person to own firearms to defend himself, family or property, as well as those that own firearms specifically for the purpose of sport, whether it be competitive marksmanship or hunting.  Perhaps you might feel that the present body of government officials are benevolent and therefore can be trusted to legislate in the best interest of the people (I do not share such disillusion).  However, as written, it would allow someone, some government official, State legislature, municipality or court that is less inclined to be so generous in their interpretation to restrict gun ownership to those that would otherwise be qualified under current laws. That anyone who wants to own a firearm would have to become a member of some sanctioned 'army' would become a way to limit ownership, since then the rules could (and probably would) be made to restrict those that could join that army.  For example, the way the current rules for the military are today, since I'm over 35 the military wouldn't accept me, therefore I'd be barred from owning a firearm because I wouldn't be allowed to join the Army or any other branch of the military. I know this because I did look into joining when I was of an age younger than today, but unfortunately of an age too old to be considered.  Since the military also has certain requirements and restrictions to physical ability and medical conditions, those people not able to serve would also be excluded.

Scalia wrote in DC v Heller about what was meant about "bearing arms":

"From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. "

"And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation."

"Outside of an organized militia" and "we find no evidence that it bore a military meaning".  In any case, the term "militia" for those that are organized has been tarnished to mean rightwing political dissidents that want to overthrow the government. Nut cases, seditionists and even "home grown" terrorists. I think that was done quite purposefully, for reasons other than the current gun control argument (a different subject for another discussion at some point). Yeah, there are some out there with more than just a few screws loose, but the majority aren't espousing overthrow or revolution, just being prepared.  But because of that small minority the rest get slammed and made guilty by association, and their belief that the government is getting too overbearing (gee, like most of us don't already know that). The article linked below goes so far as to state that it's because of Obama and the Democrats being in power, which no doubt might be true to a degree, but the growth of militias began back when Daddy Bush was in charge.


Eichenwald writes;

“Scalia is wrong because Scalia is wrong. If all people, with no exceptions, have the right to bear arms, as Scalia maintains, then this mentally ill man could buy a handgun. So could a convicted felon. And so could my 18-year-old son. Hell, kids have freedom of speech and the right against illegal search—by Scalia’s logic, my 15-year-old should be able to waltz down to Walmart and pick up a nine millimeter."

Absolute nonsense. Scalia addresses the issue of who should be prohibited from ownership, and unlike what Eichenwald contends, there should be, and there are, laws from prohibiting the underage, mentally ill and convicted criminals from owning firearms. Scalia does not state or imply that “all people with no exceptions” have the right to bear arms. In addressing the subject of those that would be prohibited to own firearms, Scalia states this;

"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Also on the subject of the mentally ill having what would appear to be open access to firearms, and little recourse by the courts to prohibit such abuses, Eichenwald quotes from a New York Times “report” (the article does not provide a link to the reference to verify if such a report exists of even if it is a “report” or simply an article or from the opinion section):

“States have mostly entrusted these decisions to judges, who are often ill-equipped to conduct investigations from the bench. Many seemed willing to simply give petitioners the benefit of the doubt. The results often seem haphazard.”

To imply that a person should have no recourse is not only unfair, but a violation of a person’s 5th Amendment right to due process.  A judicial review of someone who was perhaps wrongfully placed in the category or may even have whatever mental disorder he was diagnosed with under control by medication and therapy, and/or is not necessarily a danger to society, should be allowed. 

A jurist is most often educated primarily in law of course, and therefore that he or she is not always an expert in such matters is not a valid argument per se since courts regularly decide cases based on the testimony of experts, not out of a vacuum (although that does seem to happen at times). For example, one would not expect a jurist to be an expert in forensic medicine in determining the cause of death in a murder trial and therefore relies on the testimony of those educated in this subject.

This part of Echenwald’s argument makes very little sense to me:

"Specifically, Scalia cites freedom of speech, protection against unreasonable search and seizure, protection of rights not enumerated in the Constitution, and the powers of the states. And all of those, he points out, apply to everyone.

Slow down, and let’s examine this closely. Let’s assume Scalia is right—which he isn’t. There are no subsets of people; all members of the political community have the right to bear arms. Just like all people have the right to speak, etc."

It seems to me that he's simply reinforcing Scalia's point: There are no subsets of people and therefore the Constitution specifically guarantees the right to all of the people. That's exactly what Scalia meant when he wrote that. All Eichenwald did was write it a different way.

Eichenwald's contention that Jefferson had originally written the 2nd in a slightly different way than it now stands is addressed by Scalia:

"It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. “

As to limiting the types of weapons and arguing that the founders couldn't have anticipated the evolution of weaponry over time and therefore we should only be permitted some type of single shot blackpowder pistol to defend our homes, Scalia says this, and I agree;

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

" We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939."

" It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

Eichenwald brings up the subject of the requirement of liability insurance being compulsory for gun owners.  I have no problem with offering such insurance, and if such insurance were available I myself would consider purchasing it.  What I gather here though is not that such insurance be available, but be mandatory and incredibly costly, perhaps even more costly than what an insurance actuarial would determine as the true cost to the insured.  I have seen other proposals to this effect, and proposals that imply that gun owners should pay for the "true cost" of their hobby (yes, in dollars and cents, but also an implied cost to society).  What I fail to see is proposals that are backed up with anything more than haphazardly compiled statistics (see my comment at the beginning) that show what are contended to be that true cost.  I would suggest that before making such a mandate that a real study that reveals what the true cost in hard numbers is, and have it determined by the actuaries of the companies that you expect to provide such coverage since they are truly the experts on this subject and will determine what the premiums should be.  I feel that by suggesting that this insurance be made mandatory and also prohibitively unaffordable is simply saying that you want to ban gun ownership, but don't want to say it out loud.  

I realize that I have not addressed other issues Eichenwald brings up, such as his contention that Scalia opinion isn't valid because of what he feels is a failure to interpret grammar to his satisfaction.  Not being a Constitutional lawyer, I cannot present any argument to this.  However, Eichenwald's expertise is journalism, so perhaps his grasp of grammar is greater than mine, but I doubt that his expertise is in Constitutional law, or in law, and therefore I don't feel that his grasp on this part of the judicial process is any better than mine.

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