It had been my intent to continue on with my history of medieval philosophy from my last post. But intervening events have altered this plan, by instilling in me a need for some topical spewing of opinion. I promise that the next post shall find The Spectacled Avenger back on track.
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The shootings of US Congresswoman Gabrielle Giffords and a number of her constituents in Arizona seems to have sparked a lot of hysterical hand-wringing in the media. Don’t get me wrong; the shootings were tragic and disgusting. But the media moralizing it has generated is dubious at best. For one thing, despite almost everyone’s pronounced intention not to make this mass murder become just another vehicle for politics, everyone seems to be doing it.
For another thing, the majority of the hand-wringing has centered around the supposedly vitriolic tone of public political discourse in America, as if this is some new thing. I hate to break it to people, but the vitriol is as old as the United States itself (as this video nicely demonstrates). In the 1790s, Thomas Jefferson, as Secretary of State in the administration of George Washington, used public funds to hire an official “translator” named Philip Freneau, despite the fact that the latter only had a shaky knowledge of French and no other linguistic talent to speak of. In reality, Jefferson’s real object was to subsidize Freneau’s newspaper, which printed the most scurrilous lies about Jefferson’s political enemies, including his own boss. If you want to see real political mud-slinging, get your hands on an issue of Freneau’s National Gazette. And of course, there were the opposing Federalist scandal rags that trumpeted Mr. Jefferson’s relationship with his slave, Sally Hemings, and the children he sired with her.
We should be happy we don’t live in the last days of the Roman Republic, where the Sarah Palins and Barack Obamas of the world would simply hire gangs of club-wielding street thugs and have their opponents beaten to death in the forum. The fact is, political violence flourishes quite happily without a free press, thank you very much. I would argue that the “there-is-something-wrong-with-political-discourse-in-America” bleating is rather a red herring. American political discourse is ugly and uncivil, but so is democracy itself, more often than not. Saying that hyperbolic political discourse is responsible for murder is about as useful as saying that heavy metal albums cause school shootings.
In any case, as more information comes out about the Arizona shootings, it is becoming apparent that the culprit responsible was not so much your political fanatic with an axe to grind, but more of a mentally unhinged loner who too easily managed to purchase a gun and ammunition.
When I heard about the Arizona shootings, my first thought was that it would generate another predictable round of gun control debate. Instead, I find a very surprising lack of comment on gun control in the media. It’s almost as if everyone has ceded the issue to the NRA and given up even trying to have that discussion. When it comes to gun control, it seems to me that something has changed in America. This particular elephant in the room has somehow managed to blend in with the drapes.
What’s just as strange, not even the Canadian media seems much interested in discussing it anymore (with some exceptions). I say this is strange because usually Canadians are indecorously eager to seize themselves of an opportunity to feel superior to Americans. Perhaps we have finally realized that Americans don’t really care about whatever advice we have to offer them. And when the advice is proffered in that sanctimonious tone that we Canadians seem to have mastered when talking down to our American cousins, why should we expect them to listen to us?
The Second Amendment
I never cease to be amazed at how successful groups like the NRA have been in hijacking gun control discourse in America, nor do I cease to wonder that successive American courts have managed to willfully misunderstand one short and fairly straightforward passage in the Constitution. The Second Amendment to the US Constitution 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.
When you ask an American, as I have, what the Second Amendment says, they will usually tell you it grants citizens “the right to bear arms”; in other words they give you some perversion of the last clause of the text. This, for NRA purposes, is very convenient, as it leaves aside precisely what is most pertinent to the interpretation of the Amendment’s text.
I am not a US citizen, so I assume there is much about the history of the Amendment that I am ignorant about, particularly the dubious jurisprudence with which it has become lumbered. My aim in what follows is simply to see what analysis of the text I can come up with armed (pardon the pun) mainly with the words of the text itself, plus a little common sense and some basic knowledge of social and technological conditions prevailing on December 15, 1791, when the Second Amendment was adopted.
The Security of a Free State
First, the text states that a well-regulated militia is necessary to the security of a free state. Context here is important. The word “State” is capitalized, both in the version passed by Congress, and in the version circulated to the individual states, despite the fact that there are several differences in capitalization between the two versions of the text. This leads me to suspect that by “a free State” the framers had in mind the several States of the Union, not the federal State, especially since there was no such thing at the time as anything resembling a federal militia, the Continental Army having been disbanded in 1783.
There were at least three reasons the framers felt the need to provide for this right to keep up state militias. First, it assuaged the paranoid fears of antifederalists that the states would be superseded by a tyrannical federal government. Second, there was at the time no federal standing army to provide for defense, and initially one wasn’t welcome either, largely due to the paranoid fears just mentioned. And third, it was easier to meet local threats with local defenses in an age where the movement of forces across the vast distances of America was arduous, expensive, and time-consuming.
Therefore, the passage should be read as granting the right of the several states to maintain their own militias. As such, it should again be read as being primarily addressed to the states, not to individual citizens. Citizens are to be guaranteed the right to keep and bear arms only insofar as this serves the function of maintaining state militias. Therefore, it could be argued that if a well-regulated state militia can be maintained without the necessity of resorting to a citizenry that is armed to the teeth (as it most certainly can), then the rationale for the – in my view – subsidiary part of the Amendment falls away. The main function of the Amendment is served.
Furthermore, given that the function of a militia is to provide for “the security of a free state,” and since a citizenry armed willy-nilly is more likely to undermine the security of said state, the general right to bear arms, in its NRA-advocated form, is inimical to the purpose of the Amendment itself. Therefore, it is incumbent on judges to pursue some other interpretation of the text than that peddled by the NRA, preferably one that preserves the Amendment’s intended function instead of making it seem to undermine itself.
A Well-Regulated Militia
Next, these state militias are to be “well-regulated”. I leave it as an exercise for the reader to determine whether an armed individual under the command of nobody but himself and the voices in his head constitutes a well-regulated anything.
I would argue that at most, the Second Amendment guarantees the possession of arms only to those who are recognized as being under the command of some officer of a state militia. Each state currently has a well-regulated militia, constituted under the Militia Act of 1903: it is called The National Guard. In other words, if you are a member of your state’s National Guard, then perhaps the Second Amendment guarantees you a right to keep and bear arms. If you want to own a gun to defend yourself and your family from King George III or his descendants, then you should be required to join your state’s National Guard.
To Keep and Bear
In light of the foregoing, what can we say is meant by “keeping and bearing” arms? Well, first of all, keeping arms is quite a different thing from walking around in public with them, perhaps concealed under one’s jacket, during peacetime. The original intention, I’m sure, was that militia members would have a musket hanging over the fireplace (“keeping”), taking it down and bringing it with them (“bearing”) when mustered for active duty in defense of their state.
Of course, in a rural and agricultural society no one would have questioned one’s right to keep a gun for hunting, although this was an activity which would normally have been done on one’s own property, which was, after all, the only place where one had a unilateral right to hunt in any case.
And of course, we mustn’t forget that having the right to possess a firearm is perfectly consistent with the government’s right to know about it, to require that it be registered, and to take it away from a possessor if she should abuse her right (even NRA gun nuts would presumably say that criminals should be disarmed).
To the best of my knowledge, hunting in 1791 was not normally done with a 9 mm Glock automatic pistol (pardon my ignorance if there is no such thing) with silencer, shooting bullets with exploding tips. Nor is it now. In 1791, all firearms were muzzle-loaded and could get off a single rather inaccurate shot before requiring to be reloaded. If you were really angry and wished to kill someone in 1791, you were better advised to knock on his door wielding a club or agricultural implement.
The framers of the Second Amendment certainly never had in mind the insidious killing ingenuity of modern weaponry. And even the most hardened NRA wingnut would never (I hope) claim the right of every citizen to keep and bear a nuclear warhead in her garden shed.
In fact, firearms in 1791 were so inaccurate and took so long to reload that they were only of much military effectiveness when their fire was grouped together in volleys. It is precisely this aspect of weapons use that the Second Amendment has particularly in mind. The framers were not so much concerned with the danger (or lack thereof) of a single gun-toting individual. They were more concerned with large groups of such individuals, collected into effective bodies. It is the latter that the Second Amendment wished to have armed.
Pre-independence, the American colonists were subject to restrictions on weapons possession by the British government, precisely because an armed citizenry posed a threat to that government’s power. They were right to feel threatened, as subsequent events were to demonstrate. When forming a constitution for their own federal government, those who demanded the Second Amendment to it wished to retain in the hands of the citizenry this ability to resist tyrannical government power. But they wished to retain it for its military effectiveness, when deployed in an organized and well-regulated group. I doubt very much that a large rabble of unregulated hillbillies, however many guns they were allowed to own, would be able to resist government tyranny, at least not for very long. But if those same hillbillies are drilled, disciplined, and placed under the command of officers who know what they are doing, then tyrants have cause to quake. The framers intended that the rights of citizens be protected by a militia, not a rabble.
In the Second Amendment the right to keep and bear arms is guaranteed to the people (collective term), rather than to simply people or citizens or individuals or each person. If the NRA interpretation of the text were correct, then wouldn’t a more natural wording be “the right of each person to keep and bear arms shall not be infringed”? This is an important point. So long as arms are kept in an armory, accessible by personnel of the state militias under command of their officers, then the right of the people to keep and bear arms has been upheld. A reasonable “framer’s intent” reading of the Second Amendment, such as I propose, need guarantee no more than this.
The broad interpretation of the Second Amendment favoured by NRA types is unwarranted by the text itself and the intentions of its framers, and is more likely to be subversive of them.