Thursday, June 24, 2004

Guns and Roses

I usually write stuff and listen to music on my way home on the bus.  Yesterday I had to drive to an appointment and on the way back I listened to NPR.  The following is some evidence of how worked up I get when I expose myself to such inflammatory rhetoric.  The following may not be pretty, but I don’t feel like messing with it anymore.

So, the Assault Weapons ban is due to expire shortly.  Meantime, there’s a growing groundswell in DC about federal legislation, even to the level of a Constitutional amendment, to protect the institution of marriage from dilution at the hands (or other body parts) of homosexuals, be they male or female.  It seems to me that proponents of lifting the assault weapons ban should feel philosophically compelled to support gay marriage, but many of them seem not to.  Here’s what I mean: 

First, the assault weapon ban.  One informative source on the details of this legislation is found here.  In short, quoting that site, “(t)his law banned rifles that had detachable magazines and two or more of the following characteristics:
* A folding or telescoping stock
* A pistol grip
* A bayonet mount
* A flash suppressor, or threads to attach one (a flash suppressor reduces the amount of flash that the rifle shot makes. It is the small birdcage-like item on the muzzle of the rifle)
* A grenade launcher.”

Pretty plain, I’d say.  But then we look to this site for disturbing visions of a Constitution defiled by nervous nellies and victim wanna-bes:

“Assault weapons legislation not only disarms honest hunters and sportsmen while not further troubling the thug and his already illegal and far more deadly sawed-off 12-gauge shotgun, but it also cuts out the heart of the Second Amendment to our Constitution. The Second Amendment was enacted not to protect hunters and sportsmen, but to ensure that the government never had a monopoly of force it could use to oppress the citizenry.

“Those who argue that the authors of the Second Amendment did not intend to protect the right of ordinary American citizens to own military-style weapons must contend with the fact that the same Congress which passed the Second Amendment also passed the Militia Act of 1792. This law required every free male between the ages of 18 and 44 to own the same type of rifle that was used by soldiers in the Revolutionary War and to own ammunition as well. (...)

“The Supreme Court confirmed this in 1939. The Court stated in U.S. v. Miller:

‘The Militia comprised all males physically capable of acting in concert for the common defense . . . [and that] when called for service, these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’

“As stated by a U.S. Senate Subcommittee in 1982:

‘There can be little doubt from [the Militia Act of 1792] that when the Congress and the people spoke of a “militia,” they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard. The purpose was to create an armed citizenry, such as the political theorists at the time considered essential to ward off tyranny.’”

I think that most arguments for the propriety of letting the assault weapons ban sunset devolve on these sorts of second amendment grounds.  It might be argued - by me, for instance - that no one in government, or anywhere else, in the 18th century had envisioned a weapon that could fire as many as three rounds without being reloaded, and certainly not a weapon that could accurately fire 500 rounds in a minute the length of a football field or beyond.  The Revolutionary war was fought and won, not with big-clip high-caliber gas-cooled laser-aimed hand-held arsenals, but with muzzle-loading rifles and clumsy cannon that had next to no moving parts.  Most characteristics of assault weapons mentioned above are as far from flintlock technology as computers are from printing presses - what was in 1776 a simple and crude mechanism with very restricted capacity, is now a tool of unimaginable power, easily mass-produced and distributed.  But we’re arguing, it seems to me, that had the founders envisioned computers, they’d have wanted the first amendment to apply to them, and similarly, had they the prescience to foresee such weaponry as will soon be legalized, they would have endorsed it as a natural evolution of the original principal that the right of the people to keep and bear arms shall not be infringed. 

So now we come to the question of gay marriage.  The constitution does not speak to this subject.  Furthermore, state laws against sodomy or infernal crimes or outrageous indecency or any of those sinister euphemisms rendered constitutional intrusion in to this sphere historically unnecessary.  Why bother outlawing the marriage, when the relationship itself was illegal?  These laws enforcing heterosexuality were part of the original framework of this country, even before the right to bear arms was enunciated. 

But that is not really so very important.  The Constitution is supposed to be a living document, responsive to the changing population it governs.  That’s why it was, and remains, so highly regarded, even when this country’s overall reputation is in tatters.  Every amendment (but one) has been enacted to protect a liberty (and the odd one out was the only one we repealed).  We have an honorable tradition of recognizing errors and correcting them; the very institution of the Bill of Rights was a landmark demonstration of that virtue.  Slavery, too, was part of our original moral framework, but we ultimately rejected it - in a Constitutional Amendment or three. 

There are those who think the 13th, 14th and 15th amendments were improvidently ratified; these people are so far outside my philosophy that I doubt they would be susceptible to reason at all.  But I think that most people believe personal liberty is properly considered a protected constitutional right and that the amendments guaranteeing that right only helped realize the founding ethic of our country: the pursuit of life, liberty, and happiness.  These principals are not enshrined in any positive article of the Constitution (though one is obliquely referenced in the preamble); they have no legal weight.  But they are the words upon which our entire national ethic is based, and as such they are entitled to substantial deference and respect.  The second amendment, after all, is only a means to an end - our firearms are protected so that our lives and liberty can be protected.  And don’t forget the sportsmen, and their happiness.  They have a right to slaughter the animals over which we have dominion, if that makes them happy.  Right?

Well I don’t know if that’s right or not, but it seems to be a popular position among many who are, at the same time, preparing to amend the Constitution to prohibit gay marriage.  They say it’s a crime against nature, same as always.  Of course, the courts disagree.  They have ruled that the guarantee of personal liberty under the 4th and 14th amendments entitles us to do pretty much as we wish in our bedrooms.  And just as slavery and the notion of racial superiority was slowly discredited and anathametized until today only the pathetic and evil maintain such attitudes, so too is sexual preference slowly being recognized as a matter of personal liberty, and its criminalization is finally being seen for nothing more than the irrational cruelty it is.  Those laws are finally off the books; they were arbitrary and, at their root, a violation of the first amendment - they were laws respecting a religious establishment (of heterosexuality) and abridging freedom of personal (sexual) expression. 

So we accept the notion that the founders would want the Constitution to protect the right of modern sportsmen to buy assault weapons those founders could never have imagined, as a natural expansion of an existing right.  We recognize that the institution of marriage was clearly in existence at the time of the revolution, but the framers chose not to include any language concerning that institution in the Constitution.  The closest thing to a clause of the Constitution concerning the right to marry, is the Declaration of Independence - a beloved doctrine, even if it’s not enforceable in a court of law.  That Declaration is the basis for the rights we assert in the second amendment, a right we consider “expandable.” Similarly, it is the basis for the rights we assert in the 14th amendment - an amendment that explicitally disavowed some original constitutional language (such as Art I secs 2 and 9) when we expanded our concept of liberty to prohibit slavery.  It is consistent with these precedents to apply the principal of the expandable liberty to the right to get married. 

We recognize that laws relating to homosexuality on the books in 1776 would be ruled unconstitutional today; we do not prosecute people for such choices anymore, just as we do not permit discrimination or servitude on the basis of race or religion.  The founders, theoretically, would have supported the evolution of these rights to conform to our present circumstances, just as they would have supported the right to carry an extravagantly powerful weapon.  If so, an amendment to restrict homosexual activity or gay marriage would be inimical to the founders’ purposes to “secure the blessings of liberty to ourselves and our posterity” - and not, we must note well, to our progeny.  And if you would contend that the founders never meant the right to personal liberty to expand to such a dangerous extreme, I challenge you to a duel - your muzzleloader versus my uzi.

i love it when you write this kind of stuff—i am so right there with you.  the problem is that—i think—those people who want their FEELINGS AND RELIGIOUS BELIEFS part of the law, don’t give a good dump about the constitution and reason—it’s all about how they FEEL about it.  you, know—they “DON’T BELIEVE IN IT.  IT’S JUST NOT RIGHT.” GAH.

Well my dear this is what happens when you listen to NPR.  Nothing but erudite discourse on the Constitution which is of great benenfit to those of us who are much too lazy to look up all those wonderful specific references.  Most of the time the best I can come up with is, “NU HUH you bonehead go read the Constitution it doesn’t say that!”

A few disconnected points:

1) The assault-weapons ban is a bit obsolete in that there are guns that don’t fall under its purview that are nonetheless more destructive than ones that do. It doesn’t serve its purpose, so I think it should go.

2) You said, “The Constitution is supposed to be a living document”. There are gazillions of people (including Justice Scalia) that would disagree with that. Decriminalizing sodomy is a “living document” idea. “Arms”, I think, would apply equally to machetes, handguns, and phasers, and so, doesn’t fall under the same argument realm.

3) That whole 14th amendment thing is a bitch, ain’t it? On one hand, we ignore it when states regulate gun ownership (something liberals love). On the other, we try to force a separation of church and state by holding states to the first amendment (something that liberals love).

Holy Moly. I feel an overwhelming desire to impress you right now, but after absorbing all that the only insght I can manage is…

GUH.

I think I may have strained something.

Gopi, you make some cogent points.  As for the first, are you suggesting that no regulation should be imposed (all regulation should be lifted), or that better legislation be drafted? 

As far as “strict construction” goes, it flies in the face of close to 200 years of jurisprudence.  If we espouse it, we must retreat from, for example, most all federal commerce legislation, including anti-narcotics trafficking laws and RICO prosecutions.  Really, it would require that slavery be re-instituted and contrary amendments be rendered nugatory.  Rather than rejecting pretty much our entire jurisprudential history, the phenomenon of amending the Constitution suggests strongly to me that the framers considered it a starting point, not an ending point.  And as Marshall said in the most important case the Supreme Court ever decided, it is the province of the court to say what the law is. 

It seems to me that the framers did not contemplate private ownership of cannon and warships, just as even the NRA does not officially endorse private ownership of rocket-propelled grenades and bazookas.  A strict construction interpretation of the 2nd amendment that’s intellectually honest would limit the scope of that right to the weapons in the framers’ contemplation at the time the second amendment was drafted.  If we can expand the range of permissible weapons, there is no reason basis to restrict the range of permissible marriages. 

Finally, as for the 14th amendment, you’re right, using it to restrict the actions of the several states is structurally troublesome - but I think it’s worth the trouble.  Neither the right to free speech nor the right to bear arms were ever seen as absolute; the federal power to restrict such activity properly devolves on states as well - as do the limits on that power. However, states often impose restrictions more strict than the federal standard - I’m not sure how they get away with that… so for me it’s a problem in the application, not in the principal.

I’m torn on the issue of gun regulation.

The Militia Act pretty much allows (almost requires) people to buy the same weapons as the military. There’s talk of caliber sizes and stuff in there. The 2nd amendment has none of that. But other literature from the period clearly gives the original intent for the amendment as preventing a state monopoly on arms, and hence preventing tyranny. So yeah, I disagree with you on what an originalist would allow. (IANAL, so I could be totally wrong, though.)

Yet, I don’t like the idea of another Ruby Ridge, but with tactical nukes instead.

Furthermore with originalism, re-interpreting the Constitution is getting kind of extreme, and the 14th amendment isn’t helping original intent. Where local control was desired (such as the Establishment clause of the 1st amendment), the 14th amendment takes it away.

But my main problem is what kind of regulation actually passes even strict constitutionality tests. I’ve written about this before.

Even though I consider myself a libertarian and not a Conservative, I am rather conservative when it comes to Constitutional issues and change.

Dan, I think I like you more when you’re worked up. I’d love to see you in a court room. Moreso, I’d love to see you in a court room with the lawyers fighting in san Francisco to legalize gay marriage. I like the way you think, my friend.

I can’t really comment on the whole gun control thing. I have a conflict of interest. I’m a card-carrying member of the ACLU, a lesbian, and a die-hard Democrat. That in itself should tell you where I stand.

But.

My father’s business is guns. He’s a manufacturer’s rep for several large gun companies - hence the fence lodged up my ass. I am for controlling the guns, but when the laws are passed doing so, I see my father’s business and livelihood plummet. It’s a tough call for me.

The original intent was to create a popular militia which could defend the country.  The limitation on gun controls was only effective on the federal government; it was anticipated that local jurisdictions would impose whatever measures they deemed fit in the interest of public protection.  Looking at some ussc cases from the late 19th century, the principal of states having the right to control firearms possession and use was unquestioned - it’s not even part of the discussion, no one bothered to raise the point.  The old west was considered lawless in part because the only law was federal law which at the time was almost no law at all, in distinction to the local regulations that governed and civilized incorporated and state lands. 

It was clear that the “well-regulated” militia referenced in the 2nd amendment meant a militia that was under local control.  That kind of qualifying language is very rare in the constitution.  It’s true that there was debate at the time and more restrictive language was rejected, just as it’s true that these militias were also considered insurance against a government run amok - but it was still well-understood that these militias would train and organize with sufficient coordination to enable the government, if needed and if appropriate, to call on them at a moment’s notice.  At the same time, state limitations on firearms possession were commonplace and unquestioned. They just didn’t have a major impact because weapons with the awesome destructive capacity of today’s assault weapons didn’t exist. 

I support the right to bear arms; I believe it to be a founding tenet of this country and potentially effective in preserving life and liberty.  But guns are very dangerous and the state is wise to regulate their distribution and manufacture.  Guns don’t kill people - bullets kill people.  Or, alternatively, trauma and blood loss. 

The thing about original intent is that it is in itself a matter of interpretation.  Better, I think, to try to conceive of the right being enumerated, why it was being created and under what conditions, and then take the logic of that argument and translate it through the intervening 200 years of history to circumstances today.  Of course it’s a total artifice, but at least it’s honest about it.  Original intent is just as slippery an eel as any other in the tank. 

But my point is this: if you pick an eel, stick with it. You want to expand the definition of legal firearms from the crude muskets of 1790 to rapidfire ceramic handguns?  Then you have no basis to restrict the right to get married.  They’re both considered fundamental constitutional rights and should be interpreted on the same analytical lines.  If you think they’d have approved of one given circumstances today, you really can’t maintain that they would not have approved the other.  You might think so but there is no proof either way and the distinction ultimately must be seen as arbitrary: we are saying that they would have thought one was bad and the other, good.  But we don’t actually know.  They didn’t say.  And if they were here today, in a world more different than theirs 200 years ago than ever any two worlds 200 years apart have been, we have no idea how they’d see these modern wonders.  Fifty-six men signed the declaration of independence.  Odds are at least one of them was gay.

One more point of disagreement: I don’t think that the justification clause is anything but a sufficient condition for needing the 2nd amendment. Because I don’t think it’s a necessary condition, I don’t think it needs to be enforced (i.e., only militia members should carry arms or other restrictions).

I do think that the assault-weapons ban should go, and I do think that gay people should be allowed to marry. But I came to those conclusions through entirely separate thought-processes; I disagree with you that they are even analytically related.

these are certainly matters on which reasonable minds can differ.  To the extent you’ve described your logic and thinking, I understand where you are coming from and where you are going.  I just disagree with soem of your premises and some of your conclusions.  It makes the law a lively subject for those who attend to it.  But for purposes of clarity, I don’t think that only militia members should be allowed to have guns - just that the armed citizenry is the means by which we avoid maintaining a standing army, which is the tyrant’s main tool.  However, the tradeoff is that the nation has the right to call on the armed citizens for national protection, and for that reason, must be able to regulate them.  I’m not expecting to convince you of my interpretation, but I want to make sure I’ve articulated it clearly enough for you to disagree with what I meant to say.

Gopi, Dan....thank you for one of the most interesting, articulate and educational discussions I’ve had the pleasure to experience in a very long time!

I also want to thank you for the extensive articulation of your positions.  I know very clearly where I stand on these issues (guns no/gays yes) and while I could back up both of those positions with explanation, logic and precedent, I’d much rather let you do it, because I’m tired and Queer Eye is on.

Murry and I were talking about this at the beach.  First we came to the conclusion that our founding fathers did not have to contend with young nubile girls in bikinis, otherwise the Constitution would never have been written.  Here are some of Murry’s comments, sorry if he gets a little wordy:
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.

Seems pretty damn clear to me what Congress was thinking. Read the history of the Bill of Rights and you’ll find that the amendment was specifically passed because the U.S. HAD NO STANDING ARMY! Armies were expensive to raise and maintain, so Congress went the way of the militia instead (a concept, by the way, alive and well today - seeing as Bush has just called up about 5600 inactive ready reservists).

Now, your theory about them wanting to let the people keep guns to be able to resist the tyrannical government is a little confused. The Constitution was written 10 years after the Articles of Confederation werewritten and 4 years after the end of the Revolution. The Bill of Rights (with the 2nd Amendment) didn’t come into effect until another 4 years had passed (1791 to be exact). The Constitution was written because the Articles were not sufficient enough to keep the new nation intact. To wit: they provided for a weak government, when a stronger one was called for. So, they created a stronger government through the Constitution. To think that the Framers wanted to codify a law that would significantly weaken the new strong government they were creating is ridiculous.

The origins of your theory are in the writings of Thomas Jefferson. He was afraid of a tyrannical government and even said something to the effect that it would be a good idea for the people to rise up in revolt every generation or so. Tommy Boy was in a decided minority on this point. He was also, by the way, not a particularly big fan of democracy as we practice it and was against universal suffrage (he preferred to keep the vote in the hands of the landed gentry, even if they were like him and spent their entire lives mired in debt). Tommy was also avidly against all forms of organized religion. It cracks me up the the religious zealots of the far Right use Tommy’s writings to justify some of their arguments.
...and why the argument that it was passed to enable the people to protect themselves against the national government is hogwash. As you know, the first 10 amendments to the Constitution are called the Bill of Rights. To understand the true purpose behind the 2nd Amendment, you have to understand the debate surrounding the ratification of the Bill of Rights and the Constitution itself.

As I explained in yesterday’s email, the Constitution was wrtwrittencause many of the Founding Fathers (especially James Madison) felt that the Articles of Confederation didn’t provide for a strong enough central government. They wanted a stronger government, with powers over the individual States, because they thought this was the only way the new Republic could survive. These guys were called Federalists. Their oppopponents Congress (primarily from the South, but also N.Y.) were for stronger individual States and a weak central government. They were called anti-Federalists (for obvious reasons).

These anti-Federalists were against the Constitution for the very same reason the Federalists were for it. During the State ratifying conventions, they began calling for a Bill of Rights. They claimed they needed one to limit the powers of the federal government. What they really wanted, however, was to attach so many amendments (most of these guys were calling for 20-40 amendments for their Bills of Rights) to the Constitution that the document would not get ratified (in which case they would force another convention and draft a new document more to their liking).

But Madison and the Federalists outsmarted them. Madison proposed 10 amendments to the Constitution that he knew his fellow Federalists (who dominated the State legislatures at the time) and most of the moderate anti-FeFederalistould support. He did this reluctantly, because he didn’t think the Constitution needed a Bill of Rights. He ignored almost all of the specific demands of the anti-Federalists, and instead proposed amendments that he thought were implicit in the Constitution itself and that would therefore not degrade the power of the government that document created.

In other words, the Bill of Rights was a concession by Madison and his Federalist to the anti-Federalists (who were in the minority everywhere but VA and NY). The fact of the matter is that the Constitution probably would’ve been ratified anyway, but agreeing to the Bill made ratification easier. The key thing to remember is that agreeing to Bill was the only concession Madison made. None of the amendments limited the federal government from doing anything that the Constitution allowed it to do. Madison agreed to them simply because they reassured the anti-Federalists that the government would not degrade into some tyrannical state.

So...we get to the 2nd. It was passed to placate some people who were afraid that the Federal government would try to quash state militias (my argument yesterday may have been a llittleoff base on this point...no matter). Madison had no problem putting the 2nd Amendment in because he didn’t believe the Constitution could be interpreted to give the federal government this power.

That was the only reason the amendment was passed. The argument that it was to enable the people to protect themselves against the government flies in the face of the reality of the day and the single most important event that led to the Constitutional Convention: Shay’s Rebellion. The people were scared to death that more rebellions would rise up (there were actually a lot of them in the years after the Revolution). That’s why they wanted militias: to protect their states and the country itself.

There will be a quiz on this Saturday in the strip bar. No notes