Guns; The Baltimore Sun, misquotations and revisionism

 

The topic of guns in America is a huge one, full of controversy and very heated rhetoric. I’d comfortably say that I’ve read a large amount from the anti-gun side, and can only conclude that it is fuelled by emotion and not reason, but this article, by a Mr Albert Bedell, is really something special. It contains so many clichés and falsehoods that it needs to be taken apart line by line. Lets start at the very beginning.

No one should ever die because someone feels entitled to pull a trigger. However, it seems that every day on the streets of Baltimore someone exercises his entitlement (if you own a gun you are entitled to operate it which includes pulling its trigger). An entitlement many say is granted by the Second Amendment. But did it really?

The first sentence here is very odd: is Mr Bedell really saying that there is no time whatsoever that it is moral to pull the trigger? Not in self-defence, or to stop a murderer in the middle of a killing spree? You would have a hard time finding anyone who says that it is never under any circumstances right to fire a gun, so it’s strange he would start off this way.

I’m assuming his next sentence refers to gang violence in Baltimore or at least its high crime rate, but the issue here is with his linking of the second amendment right (which we will get on to) to murder on the streets. But these two aren’t linked; having a gun no more means you are allowed to commit murder than having a car means you are allowed to speed……or commit murder. Yes, having  gun means you can use it, but you can only use it within the law, so having a gun (as I think is blindingly obvious) does not for a second mean that gang members in Baltimore are allowed to commit murder.

Mr Bedell then quotes the second amendment, and I wouldn’t comment on this only for the fact (as he will later on twice more) that he misquotes it.

The Second Amendment reads, “A well-regulated militia, being necessary to the security of a free state, the right of people to keep and bear arms should not be infringed.”

It may seem a minor point, but it’s shall, not should.

When the first 10 amendments (the Bill of Rights) were ratified, it was clearly understood that the Second Amendment meant exactly what it said: that militias were vital to the national security and therefore people could keep and bear arms for that specific purpose, as members of the militia.

Well, he is right in saying that the second amendment meant exactly what it said to the people at the time, unfortunately Mr Bedell seems to have forgotten that and gives us his unique and entirely incorrect interpretation. Here is where he goes wrong. Militias were vital to security of a free state and therefore arms were needed, yes. But a militia could never form if the central government had disarmed the people, as the writers of the second amendment knew. Therefore the only way to ensure the possibility of a militia was to place a specific limit on government power. This is why we see the words “the right of people to keep and bear arms shall not be infringed”. In other words if the militia was to ever be formed at some point you needed an armed populace, made up of the people, and so the limiting of the power and scope of government was enshrined in the Bill of Rights.

It’s not that one could only have arms in a militia as Bedell suggests, but, that it’s a necessary precondition of having a militia that the people are not restricted by government in baring arms, as, of course, no one knows when a militia may need to form. Remember, the context here was American War of Independence. Americans had just fought off the British, seeing them as an overreaching government, so of course they would respond by ensuring the right to keep and bear arms could not be infringed, as these guns could be needed in the future if another revolution needed to happen.

For 218 years federal judges, who spoke the same English language as the Founders, held that the Second Amendment allowed states to form militias, now known as National Guards, and arms could be acquired for that unique and limited purpose. Supreme Court Chief Justice Warren Burger, a conservative appointee who replaced liberal Earl Warren, called the National Rifle Association’s idea of individual gun rights a “preposterous fraud.”

Of course they would have seen that the second amendment allows states to form militias, but this doesn’t mean that this was the reason the 2nd amendment was codified. In looking at the early commentary, nowhere have I found that the right to bear arms is solely for the use in a militia; as stated earlier, the right is given as to limit government, in order that it couldn’t stop a militia from forming. Bedell then quotes Chief Justice Warren Burger (who wouldn’t even have a second amendment in the first place), and whilst this isn’t a game of quotes, I could easily give a plethora of early legal opinions which support the idea of individual gun rights, countering Burger’s spurious claim. However, I believe this one will suffice. Justice of the Supreme Court, Joseph Story, who wrote in an 1833 commentary  that the 2nd amendment was the

‘...palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them’.

Story was against a standing army, so the arms had to come from those who already had them – the populace. This populace, of course was made up of individuals. So Bedell’s and Burger’s idea of the individual rights perspective being a modern invention, is itself a modern invention.

The NRA building’s façade is emblazoned with its trimmed version of the Second Amendment which includes only these words, “The right of the people to keep and bear arms shall not be infringed.” By omitting the vital words, “A well-organized militia, being necessary for the security of a free state,” the organization sought and bought justification of gun ownership. The NRA contributes millions to politicians to maintain this deadly diminution of the true meaning of the Second Amendment.

I mentioned earlier that he would, again misquote the text. Here we have arrived at that place.

“A well-organized militia, being necessary for the security of a free state,”

Its regulated, not organized. Strange how he couldn’t just Google it…….. but we must continue.

In fact no vital words were omitted, the right is reiterated in the final clause; to keep and bear arms not being infringed. I say reiterated because the sentence reads as if the right is self-evident, a pre-existing idea, and so the fact that it may not be infringed is the emphasis. It is the limit on government. Therefore the meaning of this amendment is kept, regardless of how much money the NRA has given politicians.

In fact contrary to popular belief the NRA isn’t the top contributor in Washington, or even close. For the 2016 election its lobbying expenditure was around $3.6 million :to put that in perspective the total lobby expenditure for the National Association of Realtors was over $64 million. In terms of top campaign contributors, the NRA didn’t even make the top 400. Yes, not even the top 400. I could devote an entire article to the defence of the NRA, but for now I will say this. The NRA has no independent power, its power  comes from the 2nd amendment; it believes in it and defends it. The reason why it’s such an effective lobby is that it has millions of passionate members who also want to protect their 2nd amendment rights.

Back to his article.

That venerable understanding of more than two centuries was shattered, when stare decisis (the doctrine to stand by things previously settled by the court) was shattered by a radical 5-4 majority decision written by Justice Antonin Scalia in the District of Columbia v. Heller case. There the court found a new constitutional right to own a gun for self-defense in the home, despite the fact there were no written guarantees in the Constitution to an individual right to a gun for self-defense, nor were there references to such a right in the Bill of Rights debates.

The court found no such thing.  What the case found was that the second amendment (as is quite obvious) was for the defence of life and liberty and so by any meaningful logical extension this applied to the individual as well as the state. There would no more need to be a Supreme Court ruling on whether the second amendment applied to self-defence at home, any more than there would need to be one for the first amendment (the right to free speech) applying to Twitter. The second amendment is about government not infringing on my right to have a gun, in case I might need it, and the need is for any legal reason I choose. That’s the point. It’s not telling the individual that he or she may have a gun for a limited specified purpose, it’s telling government that it may not infringe on that right. It’s not a top down directive but a bottom up limitation.

Justice Scalia, who staunchly believed that court decisions should be based on a strict reading of the Constitution or the “original thinking” of the Founding Fathers, swung 180 degrees in composing the court’s opinion. It reads like the work of someone beset with obsessive-compulsive behavior as it picks and nit-picks to support this diversion from his norm. It has also been said that his diversion from that norm was influenced by the writings of scholars and scholars who were paid by the NRA Foundation to construe arguments for individual gun ownership.

This paragraph is almost entirely an irrelevant and insulting personal attack on Justice Scalia that I will not dignify with a response.

Many legal scholars deride Mr. Scalia’s regressive judicial philosophy. Ironically, they say any objective study of the Founding Fathers’ thinking indicates they understood why guns were needed and why their use should be strictly limited to “well-armed militias.” Guns were not to be owned by every male. If you had a gun, you were a member of the militia.

Ah yes, the ‘many-scholars’ argument. This appeal to an authority is not only irrelevant but also false. Justice Scalia’s textualist-originalist approach doesn’t seem to be regressive at all: in fact, it makes complete sense to understand, and to exegete a document by looking at the original intent of the author. His point about the founding fathers is easily refuted, as they said no such thing. I could give a myriad of quotes that show them saying the opposite. Thomas Jefferson, in a letter to John Cartwright wrote, for example, that it was the people’s  ‘..right and duty to be at all times armed‘. So explicitly not solely when acting in a militia, and again, this amendment was not about giving the people some right, it was about recognizing the limitation on government such that it becomes possible that a militia could form at some point.

Justice John Paul Stevens’ strong dissent in Heller concluded that basis for the Second Amendment was to address, “fears of the national government disarming the state militias … an intolerable threat to state sovereignty.” Justice Stevens argued proponents hadn’t the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. He concluded, “There is no indication that the Framers … intended to enshrine the common-law right of self-defense in the Constitution.”

Actually there is every reason to believe that this was exactly what the framers where thinking when they ratified the amendment. It makes the most sense when we look at the context of the American Revolution quotes from the Framers and from the text itself.

Heller has made America less safe as it inhibits cities and states from enacting sensible laws that can better regulate gun ownership. People who vehemently staunchly support unrestricted entitlement should remember that the Second Amendment in the Bill of Rights before pulling the trigger, “A well-organized militia, being necessary for the security of a free state, the right to keep (not own) and bear arms shall not be infringed.” It may be too late to put the genie back in the bottle but Congress can pass laws that offset the bloody mayhem that blots our streets.

Whatever the Heller case said, there are still numerous gun control laws both at federal and statewide level. California for example has an assault weapons ban, which includes various rifles, pistols and shotguns, so what he would see as ‘sensible’ laws are in fact  already in place across the US. We have another misquote (the third and final time) of the 2nd amendment (regulated not organized), but this time including his own bracketed emendation. An interpretation alien to the text. There is nothing about not owning arms. His final comment about bloody mayhem seems odd. As per usual no details are given. I’m not sure what he proposes to stop the bloody mayhem but, if by ‘the streets’ he means gang violence then gun control will not do anything, as gang members aren’t going to follow strict gun laws – obviously. Why would they want to disarm themselves? Gang violence will not be solved by gun control because guns don’t cause gang violence: if we want to solve that problem we need to focus on the real causes of why gangs exist in the first place.

So, truly this is one of the most ill-informed things I have ever read, but I thank Mr Bedell from Baltimore, as his article is a fantastic example of how reasoning about gun rights can go so horribly wrong.