Sunday, March 4, 2018

Gun Control - Justice Scalia to the Rescue?, the Dirty Truth about Resistance to Gun Control and a Question


A Question:  

Who will be the first on President Donald Trump’s team to finally declare, “I’m not going to jail to save that pumpkin headed moron who doesn’t know that the ethics acceptable in the shadier part of the business world are not acceptable in government service?  Let him serve time, not me!”
JL




The Supreme Court Gave Gun Control a Thread of Hope in 2008 ... But ...

The Second Amendment to the Constitution of the United States reads: “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.”

Many Americans believe that the Second Amendment has been hijacked by the National Rifle Association and weapons manufacturers.  Its original purpose, supposedly preserving the right of individuals to possess weapons so that States would be able to call upon armed citizens to serve in militias, no longer exists.   Yet advocates of the Second Amendment persist in hanging on to its final fourteen words to justify opposing gun control legislation.   (See the following article on the Second Amendment.) The tortured reasoning of Justice Scalia in District of Columbia vs. Heller (because a State could call upon all of its people to serve in militias, the right to keep and bear arms is extended to all of its people regardless of whether or not they are asked to serve in a militia) is an example of this. But that majority opinion also holds hope for those advocating stricter gun control.  Read on!

In that case back in 2008, the Supreme Court held that the Second Amendment was violated by a District of Columbia ordinance which prohibited an individual from possessing a hand gun and keeping it at home.  But this decision, broadly interpreting the final fourteen words of the Second Amendment (“the right of the people to keep and bear Arms, shall not be infringed”) applied only to that law regarding hand guns. The Court did not extend it further. In fact, in his lengthy majority opinion,  The late Justice Antonin Scalia included language (excerpted below) making quite clear the limits of the decision.  The right of individuals to keep and bear assault weapons regardless of whether they are fully or semi-automatic is not protected, even by this case’s broad interpretation of the Second Amendment. Here are Justice Scalia’s words:

“. . . Like most rights, the right secured by the Second Amendment is not unlimited.

 . . . commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment.

. . . 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 . . .   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.  

. . . We also recognize another important limitation on the right to keep and carry arms . . . that the sorts of weapons protected were those “in common use at the time.”  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Hence, there is hope that the Supreme Court will forget the political implications of their decisions and ultimately solve the problem of assault rifles.  But don't get your hopes up too high too soon!

It will be very difficult to get a case to the Supreme Court to enable them to follow through on the opening mentioned above, whereby the banning of assault weapons would not be considered a violation of the Second Amendment.   Why?   Many State legislatures, bribed by NRA support and legal assistance from the right wing ALEC (American Legislative Exchange Council) have passed laws prohibiting local governments from passing their own gun control laws.  If a Florida county or municipality does so, for example, they are subject to significant fines from the State, so they don’t pass such laws.  So it won’t be easy to come up with a case on which the Supreme Court can rule, defining the limits of the Second Amendment in a manner which would ban assault rifles, the real killers of school kids and other victims murdered by civilians possessing these military weapons.  But I’m sure such a law will be passed somewhere some day, be challenged by an NRA lackey, and reach the Supreme Court.

Another ray of light is the fact that some braver G.O.P. legislators are beginning to break away from the chains the NRA has put around them.  Brian Mast (Florida’s 18 C.D.) now advocates more gun control than he did a month ago.  And retiring Congressman Tom Rooney turns out to have been a supporter of gun control all along who admits that he needed NRA support and always voted against gun control to get elected in his district.  How many Republican legislators in Washington and in State Houses across the nation are similarly enchained?  We must give them the courage to break loose.  

This must be changed!

These Republicans are like businessmen who, while against crime, still pay money to criminal racketeers as “protection” against their business being molested in some manner, the molesters of course being these same criminals.   So it is with the N.R.A.  Vote the way we tell you or we’ll run someone against you in a primary and knock you out of office.  Not too different from getting your store windows broken if you don’t pay off someone to keep them from being broken.  The N.R.A. should be Bob Mueller’s next target!

JL



The Dirty Truth About Resistance to Gun Control

Back in 1789, when Virginia and some other wealthy States were hesitating on ratifying the newly written Constitution of the United States of America, James Madison and George Mason came up with a solution, the Second Amendment.  Really, the essence of what it was all about was the fear of the Southerners that a Federal Government would use its power, and that meant its armed forces (although there was no standing army at the time), to eventually take away their property, and by that they meant their slaves, by freeing them.  

In order to make them happy, that Second Amendment provided that “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.”  To some, the word “security” meant general physical protection but to others, once this polite icing was removed, it meant that the slave-holding Southerners would have arms to fight an eventual Federal effort to take away their property, specifically their slaves, by freeing them. This happened 71 years later.  It was known as the Civil War.

Today, the political descendants of these same folks (and they’re no longer just in the South) who insisted on the Second Amendment before they ratified the Constitution are again concerned over the Federal Government taking away their property.  They lost the Civil War, all right, but they still insist on keeping the Federal Government, whom they never trusted, at arm’s length.  Certainly, the Second Amendment doesn’t give them enough power to resist the country’s armed forces, but the idea of their having the right to do so still simmers down deep. 

A Washington Post column by conservative Michael Gerson, last week, included the following: “When it comes to American gun culture, the issue of motivation matters a great deal.  If you defend access to guns for sport and self-defense, there is no logical reason to reject reasonable restrictions on firepower and access.  Some compromise is within the realm of possibility.  But if you view the ultimate purpose of gun ownership as resistance to a future tyrannical government, then restrictions on firepower and  access are exactly the things a tyrannical government would                  
want.”  Gerson goes on to quote the National Review’s David French as summarizing this position as the concept of an armed citizenry as a final, emergency bulwark against tyranny.”
  

                                                           Gerson and French

So are we right back where we were when Madison and Mason, with a nervous Alexander Hamilton probably pacing up and down in the hallway, came up with the idea of the Second Amendment, really to protect slavery. 

But if there had been no slavery in the first place, I suppose they still would have wanted the Amendment to protect their other property from seizure by the Federal Government. 


The idea of an armed citizenry as a bulwark against tyranny was there in 1789 and it is still there today. That’s why there are part-time “militias” practicing tactics in the woods of Idaho, and elsewhere, today. In 1789, the memories of iron-handed rule by the British remained.  Some States wanted a guarantee that the new nation’s Federal government would not resort to similar tactics. That’s why they had fought the Revolution a few years earlier.  In 1789, “the right of the people to bear arms” was the answer.  In the minds of many today, that’s what the battle over gun control is still about now that slavery, which was an excuse for 72 years, no longer clouds the real issue.

That issue is the paranoid fear of tyrannical government in Washington taking away their property, which translates loosely as their wealth. That is what they fear.  Without dwelling on this, many supporters of the Second Amendment fear losing their property through high taxes, wealth redistribution and government-provided social benefits to the less fortunate among us in the nation’s population … with their money (or property).

Look in the eyes of the leadership at an NRA convention.  Look in the eyes of almost anyone at the recent CPAC (Conservative Political Action Conference) meeting.  Look in the eyes of the Republican “Freedom Caucus” members off on the far right in the House of Representatives. Look in their eyes and you will know what ”the right of the people to keep and bear arms” means to them.  It borders on retaining the ability to commit treasonous acts.   This is the dirty truth about resistance to gun control legislation. And this is serious stuff about which no one talks, at least publicly.  Thank you, Michael Gerson and David French, for doing so.
Jack Lippman



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