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.