Betraying the Founding Fathers: How Scalia and the NRA Hacked the 2nd Amendment

495px-Constitution_of_the_United_States,_page_1_cr

The Second Amendment does not give Americans the right to keep a gun for personal self-defense or recreational use. Most people think it does, it’s often repeated by the gun lobby and of course Scalia & co. came to that conclusion, but that doesn’t make it true. Here is why:

The framing, Congress debate and drafting of the Second Amendment had the purpose of avoiding the tyranny of a standing army and ensuring states could maintain their own militias as a check against a national government. It is a military amendment and that is why debate at the First Congress focused on conscientious objector language and whether that could be used by a government to undermine the amendment.

The Second Amendment in fact only came about because Article I, Section 8 of the Constitution initially allowed the government to arm the militias (and so could leave them to wither) – the Second Amendment took that right to arm the militias back to the states. The President is the Commander in Chief “of the Militia of the several States, when called into the actual Service of the United States”. This is the purpose of the Second Amendment.

The framers deliberately did not include language to expand this right to individuals for self-defense and hunting. Many state constitutions DO include words to that effect. For example, Pennsylvania’s 1776 constitution stated:

“That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power”

And in fact Pennsylvania and Massachusetts proposed – but rejected – similar Amendments to the US Constitution at their ratifying conventions:

“That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;”

New Hampshire was the only state that ratified a proposed amendment that came anywhere near an individual self-defense right – but again this was rejected by the framers and not included –

“Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

These contemporaneous examples of individual rights language prove three things:

  1. The framers were aware of the distinction between defense of the self, hunting and defense of the state
  2. The framers knew how to express that distinction in clear legal language
  3. They chose not to do so in the Second Amendment after a lengthy drafting process

We can’t go back and wish they had included that language. They didn’t. If we want that federal individual right, the Second Amendment itself has to be amended.

[An aside: Switzerland, which actually does have a well-regulated militia, also makes that distinction – you are prohibited from using your militia weapon to fight an intruder for self-defense and in fact you would be prosecuted.]

So how did Scalia extract an individual rights reading from the Second Amendment in the Heller decision? By betraying the whole purpose of the Second Amendment. In his obsession to conjure up a reading for the gun manufacturers he arms Americans for the trivial and disarms the people for when they would need to fight for freedom. He does this in two steps in his Opinion:

Step 1

He puts a red line through the ‘prefatory’ clause of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State”, essentially saying it’s just an “fyi” –

“But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause”

It does not limit “keep and bear arms” to militia, but equally it may not expand it beyond militia or even to include militia at all!

In practical terms, he is saying “Let’s ignore it, the right is unrelated to a militia.”

Step 2

For “bear arms” he then declares that

“it in no way connotes participation in a structured military organization.”

i.e. you don’t have to be a member of a militia to have a gun. The Second Amendment is there PRECISELY so the people have the right (and duty) to be part of a structured military organization. If a government is in that transition period from democracy to tyranny, or if a rebellion has to be put down, the people would need to mobilize, which means meet regularly, plan, create a leadership structure, train, inventory weapons, and so on.

Scalia’s decision means that the government can then say, “No, you can have your handgun to defend against an intruder, but the Second Amendment in no way connotes you can have a structured militia.” They would be able to legally disarm and arrest those involved in organizing a militia, while still honoring an individual’s supposed right to bear arms in their house.

In his obsession to get to the individual right, Scalia has trampled over its clear militia context and so robbed the Second Amendment of the very purpose for which it was put in place originally – to allow state militias to mobilize properly against a national threat to political freedom.

This is what former Chief Justice Warren Burger, a conservative who was against gay rights and voted in favor of Roe v. Wade, said back in 1990 –

“The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime.  The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state.  The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”

Burger is clear on this issue – the Second Amendment is not an individual rights law. The framers clearly lived in a world where they expected weapons to be used for self-defense and game, but that was left to the state laws.

Of course the Second Amendment is not fit for purpose today – we all accept a need for a standing army and the “arms” state militias would realistically need to take on the US army are too destructive to make widely available. As it stands, the Second Amendment should allow militias to have weaponized drones, RPGs, chemical weapons, it would be absurd to argue the Second Amendment only related to muskets of the day.

Scalia has a particularly torturous way of sidestepping this issue by asserting “arms” only applies to whatever weapon is popular and usual at the time – so handguns are fine but machine guns and drones aren’t. But how will the latter ever have a chance to become popular if they are banned from sale?

Despite the paragraphs spent on it above, it should be noted the debate around the Second Amendment is generally a luxury, abstract discussion that implies we have bags of time to sit around and chew the fat – maybe that time exists in the suburbs and small towns.

For those living in cities with a family, it is a much more pressing and real issue. Not everyone affected by gun violence is a drug dealer, innocent people live in every neighborhood.

This is not some abstract debate about a badly written law from over 200 years ago that’s been twisted for financial ends to sell more guns. These are real things happening to real people. And America is actually, shamefully, still discussing in 2013 whether it is tyrannical to obligate somebody buying a gun privately to do a background check.

If these things happened more regularly in white, suburban and/or affluent neighborhoods, that discussion would be a very short one.

The Constitution declares we are trying to ensure “domestic Tranquility” – well, where is the tranquility for the 10,000+ people gunned down every year? Or the more than 100,000 wounded? Their tranquility is destroyed because the gun lobby is deliberately misrepresenting the Second Amendment and preying on people’s patriotism and fear to, quite simply, sell more guns to whomever they can get away with. It has nothing to do with the genuine defense of liberty, which takes real work and organization – something the Second Amendment did for its day and something we can maybe get again for the states by amending it.

Yes, people have different opinions, but not all opinions are equal. Scalia’s Opinion will be overturned in the course of time because it is perverse and breaks the Second Amendment into pieces to fit the agenda of the gun manufacturers.

We WILL have strong gun laws that reduce the number of deaths each year – it’s just a matter of how many people have to die before everyone says “Enough is enough” and we do it.

A man bombs 3 in Boston and we’re ready to strip him and us of constitutional rights in an instant; a man shoots 20+ children and God forbid we should even talk about gun violence measures…

“Shit Happens” is no longer an acceptable answer from the GOP, NRA, gun manufacturers and their complicit supporters in the face of this level of gun violence.

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Follow US Gun Violence (https://twitter.com/usgunviolence6) and spread the message that strong gun laws save lives.

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Correction [Oct 20, 2013] – A reference to the Articles of Confederation was corrected to “Article I, Section 8 of the Constitution”.

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One thought on “Betraying the Founding Fathers: How Scalia and the NRA Hacked the 2nd Amendment

  1. lacithedog

    If you want the ultimate slam dunk on Scalia’s reinterpretation being a fraud: check out Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972). Justice Douglas happened to be on the Supreme Court at the time that US v. Miller was written:

    “The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which 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.”

    There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

    The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

    “The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.”

    Reply

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