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
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.
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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