Friday, February 01, 2013

Second Amendment supporters Worried

Many gun owners and Second Amendment supporters are concerned about the current anti-gun hysteria sweeping the nation. It has been labeled “paranoia” by some. Let’s look at some statements out there by some of the labelers.

1. “No one wants to repeal the Second Amendment.” Gong! There are bills introduced each session of Congress to start the process to do just that. Google “repeal Second Amendment” and you’ll see lots of hits on people advocating just that.

2. “The Second Amendment will not be repealed (de jure)”. This one is accurate if it is limited to a de jure repeal. Amending the Constitution is a difficult process and when push comes to shove, gun controllers who care about freedoms important to them would probably not want to take the risk of setting a precedent.

What the folks in 2., above, miss is the fact that the Constitution can be amended de facto. Basically, 5 Supreme Court Justices can overrule, gut or limit any precedent. There are a number of ways for the U.S. Supreme Court to do this to the Second Amendment. This is where the real concerns lie.

(1) Overrule Heller and McDonald and hold that the word “people” in the Second Amendment does not mean “individuals.” It means official militia members who are not given arms by the government or state governments. Those two decisions were 5-4. One Obama appointee replacing one of the Heller/McDonald majority could do this.  (Lots of people in the blogosphere  and elsewhere  have recently become experts on constitutional law and history, and are still making this ludicrous argument)

(2) The Court in Heller and McDonald did not specify a “test,” or “standard of review” to be used by courts in 2nd amend. cases. If a Supreme Court majority were to adopt a “rational basis” test, this would gut the amendment. Just about any gun control law could pass this test. All is requires is that the Court be able to think up some reason to justify the law. No data required. The Court will come up with the reason, even if the government can’t.

Partial guttings of Heller and McDonald could be accomplished by a number of means.

A. The word “bear” in the amendment doesn’t mean “carry.” It refers only to carrying in militia service. This would limit the amendment to guns in the home.

B. The Court was unclear in Heller whether the right applies to all lawful uses of firearms of just self-defense. If the right is held to apply only to self-defense, not any other lawful use (e.g. target shooting, hunting) this could be the vehicle for un-protecting long guns (e.g. “assault weapons.”) which are deemed less safe and efficient than handguns for home defense. They could also hold that a person asserting a defensive need for a gun prove that there is a real danger or threat.

C. Another theory being floated by Obama (to deflect criticism and send a suggestion  to the Supreme Court) is that Second Amendment rights have to be limited because they threaten freedom of speech, freedom to peaceably assemble, worship, etc., and other constitutional rights (which are seen as more valuable). The legal landscape is leaning too far in favor of the Second Amendment. This theory looks logical but isn’t. Using a gun or threatening to use a gun on a speaker, worshipper or protestor is a crime. The person’s fear that someone in the audience may be lawfully carrying a gun and may shoot them because they don’t like what the speaker is saying or protesting about is overdrawn. (I am reminded of college profs who fear that students who get bad grades will kill them if concealed carry on campus is allowed.) These types of gun crimes are extremely rare. Assume person A is exercising a constitutional right. Person A is afraid that person B, also exercising a constitutional right, will hurt him/her by committing a crime. This justification for limiting the rights of B, is unprecedented. Arguably, concealed carriers in the audience might be able to deter or stop the intended killer. Speakers and protestors are entitled to police protection just like anyone else. (Of course, no one can sue if they aren’t protected). In spite of what some people seem to think, the Second Amendment doesn’t authorize anyone to commit a crime with a gun. The second problem is that guns don’t cause crime, no matter what type of gun crime it is. Gun control will not work to deal with the problem.

There are examples of this process. Over the years, the Supreme Court, by giving expansive justifications to federal powers, has gutted the 10th Amendment. The Court is slowly gutting the Fourth Amendment exclusionary rule. The Equal protection clause was severely limited by Plessy v. Ferguson.

Propaganda fed fears are powerful motivators. Fear of Japanese-Americans led to their internment during the war. Just because we are a democracy is no guarantee that constitutional rights will be valued and respected.


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  2. Thanks for sharing your insightful analysis. One reason I always refer to the Anti-federalist commentaries is to gain a better perspective of the original meaning of our country’s constitution. For example, “John DeWitt” wrote in 1787, “That insatiable thirst for unconditional [control] over our fellow creatures … produced the first Bill of Rights ever prefixed to a Frame of Government. The people, although fully sensible that they reserved every tittle of power they did not expressly grant away, yet afraid that the words made use of … might convey more than they originally intended … endeavoring thereby to prevent any cause for future altercation and the intrusion into society of that doctrine of tacit implication which has been the favorite theme of every tyrant from the origin of all governments to the present day.”.

    SCOTUS’ latest decisions regarding the 2nd Amendment correctly identifies it as primarily an individual right with the “Militia” being peripheral or subordinate to the clause.

  3. 44: Thanks for the comment. We can thank the anti-federalists for our Bill of Rights. The federalists naively/stupidly didn't think one was necessary. I think both you and I share some of the anti-federalist distrust of a powerful government.