Pick Wayne's Brain

March 25, 2012

It’s Time To Talk About Our Guns

On Feb 26,2012, in Sanford, Florida, 17-year-old, 140-pound, Trayvon Martin was shot and killed by 28-year-old, 250-pound George Zimmerman. Zimmerman has said that it was a case of self-defense. Despite the many facts that have come to light since the shooting, Zimmerman remains a free man, who hasn’t yet been arrested. The Sanford Police report also raises some questions on its own, such as why less than one minute elapsed from the time 9-1-1 was called until the time the police arrived to find Trayvon Martin face down and dead. If accurate, it would mean that George Zimmerman could not wait one single minute from the time he was told they did not need him to follow Trayvon until the time he killed him. [NOTE: Many people have brought up the racial aspects of this case, but since race has nothing whatsoever to do with the discussion I am having here, I have intentionally left those aspects out. I completely agree that had Zimmerman been black and his victim a 17-year-old white male, he would have been arrested immediately. But let’s save the racial aspects for another discussion.]

Although Zimmerman’s lawyer has said his client would not be invoking it, at the middle of this controversy is a law known colloquially as the “Stand Your Ground Law.” It says, in essence, that if you reasonably believe your life is in danger, you can use deadly force to defend yourself. The law was modeled on laws designed and written by ALEC, the American Legislative Exchange Council, a conservative group of legislators and corporations that propose bills to be passed by the states. Believe me when I say they are not acting in your best interests. They are dangerous, and the laws they’ve helped pass have put innocent people in danger. They must be exposed and dealt with, but for now we as a nation must once and for all settle this matter of what the true meaning and intent of the Second Amendment is, and what role guns should have in our Society.

For the record, and so that there is no misunderstanding about the topic, here is the full text of the Second Amendment. Visitors to this blog who have a conservative viewpoint and who get their information about it from the NRA may be surprised. It says:

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.

But there’s more to the issue than simply the 2nd itself. There is the issue of how our military is supposed to be structured. How does that word “Militia”, all capitalized and such, fit in? To understand that, it wouldn’t hurt to review what the Constitution says on the subject of our having an army.

The Congress shall have power…

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Since the word “Militia” figures prominently in this discussion, we may as well review exactly what it is. Here is the definition of a Militia, as found on the Free Dictionary, Legal Definitions section, “A group of private citizens who train for military duty in order to be ready to defend their state or country in times of emergency. A militia is distinct from regular military forces, which are units of professional soldiers maintained both in war and peace by the federal government.”

I strongly recommend that you read what that link says about Militias and their history. It helps provide the context necessary for an intelligent discussion on the topic. Before reading that, I often argued that the 2nd Amendment was about national defense, not personal protection. I am more convinced of that now than ever. Citizens were allowed to own guns because, originally, all able-bodied men were required to be members of their state’s Militias and to provide their own weapons for that purpose. No matter what anybody on the Right tells you, the purpose of the 2nd was not to serve as a threat against the federal government. (On a side note, I find it humorously ironic that these same people never argue that having guns was supposed to act as a check on their own state’s government, just the federal one. Why is that? Why would people so paranoid about what their federal government might do never express any concern about what their state government might do?)

A few quotes from the article to show my point:

The American militia system has its roots in ancient English tradition, dating back to the Anglo-Saxon militia that existed centuries before the Norman Conquest in 1066. This militia, known as the fyrd, consisted of every able-bodied male of military age. It was traditionally used for defense only, and the sovereign could call upon the fyrd to fight if the men would be able to return to their homes by nightfall. Fyrd members were required to supply their own weapons, which they could use only in the service of the king.

Take note of that last part. Originally, the weapons were ONLY to be used in the service of the king. This changed slightly during Colonial America days,

When the English began to establish colonies in North America in the seventeenth century, the colonial governments continued to require all able-bodied free men to possess arms and to participate in the colonial militias. Each colony formed its own militia unit, appointing officers, providing training, and building its own fortifications. The function of each colonial militia was principally to defend the settlers’ homes and villages against Indian raids, and at this they were largely successful.

When the Articles of Confederation were deemed a failure and the group meeting to revise them decided to draft an entirely new Constitution, the subject of Militias was discussed. (emphasis mine)

When state delegates met in 1787 to create the Constitution for the new United States of America, the principal division was between those delegates who favored a strong central government and those who preferred to leave more power to the states. The former wanted a strong standing military, and the latter argued for greater reliance on the state militias. The issue of a standing military was particularly controversial because many Americans were suspicious of the very concept of a standing army, associating it with the tyranny they had experienced under Great Britain. Nevertheless, because most of the delegates were more concerned about invasion than domestic tyranny, Congress was given the power to create a standing army if it so chose. Advocates of state power did achieve a partial victory, however, in that authority over the state militias was divided between the federal government and the state governments. Congress was given the authority to organize, arm, and discipline the militia, but states were given the power to appoint officers and provide training. Congress, not the president, was given the power to summon state militias into federal service for just three specific tasks: “to execute the laws of the Union, suppress insurrections, and repel invasions” (Art. I, Sec. 8, Cls. 15, 16).

So clearly the right to bear arms was about national defense, not personal protection, and the Supreme Court recognized this in United States v. Miller – 307 U.S. 174 (1939).

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

They concluded, correctly in this author’s opinion, that Congress had the authority to regulate guns that would not be considered as those used by a well-regulated militia. Unfortunately, they stated it incorrectly, in this author’s opinion, and left open the possibility that one could own a Gatling Gun, since such a weapon could absolutely bear a “reasonable relation to the preservation or efficiency of a well regulated militia.”

For nearly seventy years, this was the prevailing view of the Supreme Court. Then, conservatives on the bench got their chance to overturn Miller. When the District of Columbia passed a ban on handguns (which, by the way, were designed for one and only one purpose – to kill people), the law was challenged and held unconstitutional on appellate review. In the 2008 case of District of Columbia v. Heller (2008), conservatives on the Court completely lost their minds and held that being part of a well-regulated militia was not a prerequisite for owning guns and ruled the DC ban unconstitutional. In an act of sophistry that boggles the mind and belies their sincerity in actually interpreting the original intent of the Constitution, which they like to claim they do, they engaged in judicial activism and decided to first interpret the second half of the Second Amendment, the operative clause (“…the right of the people to keep and bear arms shall not be infringed”) and the first half, the prefatory clause (“A well-regulated militia being necessary to the security of a free state,”) as not in any way limiting what the operative clause meant.

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.

In other words, they decided that the entire context of the operative clause meant nothing because it didn’t specifically say that a well-regulated militia was the only excuse for owning guns, even though that was the original purpose for the Second Amendment. They further argued that what State Constitutions said (which are supposed to be subordinate to the Federal Constitution) proved what the Framers of the Second Amendment meant, even though they didn’t. But as Justice Stevens pointed out in his dissent (scroll down in the decision to see it), if the Framers had wanted the 2nd Amendment to be interpreted as protecting the right to own guns for self-defense, they would have said so just as some states specifically said so in their own state constitutions. In Poor Richard’s Almanack, Ben Franklin wrote, “Early to bed and early to rise, makes a man healthy wealthy and wise.” Using Justice Scalia’s reasoning, does that mean that Man is healthy, wealthy and wise regardless of whether or not he goes to bed early or gets up early?

Let’s try understanding Scalia’s “rationale” from another angle. Suppose the amendment read, “A well-rounded breakfast, being necessary to the start of a good day, the right of the people to cook and prepare scrambled eggs, bacon and buttered toast, shall not be infringed.” Is it reasonable to conclude, from the wording of the Amendment, that you have a right to eat scrambled eggs, bacon and buttered toast anytime you wanted? It’s true that the prefatory statement doesn’t say you can’t, but it makes it clear that the primary reason you can do that is because it is necessary to the start of a good day. So how could anyone conclude that this amendment gives you the right to eat scrambled eggs, bacon and buttered toast as your final meal of the day? Now suppose that the Congress passed a law that further stipulates that this right doesn’t apply if your doctor tells you it would be bad for you to have scrambled eggs or bacon or buttered toast. Would you argue that you should still be allowed to have any of those things?

Nor does the plain wording of the amendment give you the right to substitute unbuttered poached eggs for scrambled eggs, or toast for buttered toast. So how would anyone conclude that this amendment gives you the right to do that? And the amendment says nothing about what any doctor says on the subject, yet Congress has added a condition for which the right specified in the amendment doesn’t apply. Whether or not you have the right to eat scrambled eggs, bacon, and buttered toast anytime of day you wished, or whether or not you could substitute poached eggs for scrambled eggs or unbuttered toast for buttered toast, is not going to be found in this amendment. Yet that is what Justice Scalia has done. He has taken the plain wording of “A well-rounded breakfast, being necessary to the start of a good day, the right of the people to cook and prepare scrambled eggs, bacon and buttered toast, shall not be infringed,” and interpreted it to be saying that you can have any combination of eggs, bacon and toast, anytime you want, but still not have that right if a doctor says they would be bad for you. And now we have a country where anyone (with few exceptions) can have any kind of gun they want.

But why guns? What is it about guns that make people feel safer? I really don’t care what anyone says, even my fellow bloggers here at The Zoo and the frequent visitors who own firearms, guns are dangerous. Among other reasons, they are dangerous for the very same reason that it is dangerous for other countries not friendly to us have intercontinental ballistic missiles with thermonuclear warheads on them. They would then have the ability to launch those deadly weapons at us from the relative safety of their own shores. Sure, we could launch the same kind of weapons right back at them before our own demise. But all that’s equivalent to is two people having guns that they manage to shoot at each other before dying. In the end, they’re both still dead. Guns give people who are not in your immediate proximity the ability to kill you without putting themselves at personal risk.

Guns are dangerous to people (and other living things.) People with guns are dangerous. People with guns are more likely to choose them as the deadly force they would wish to employ against an attacker than any other weapon nearby. Who among us truly believes that guns are good to have in self-defense because they can wound an attacker? No, the people who think guns are good to have in case of an attack believe so because a gun can be used to kill an assailant, not simply to wound him. Why are people so hell-Bent on defending the imagined right to kill another human being? Have we, as Americans, sunk so low in our morals that we look for any excuse in the world to legally deprive another person of his life? I hear all the time, especially from the same political faction that supports the right to own guns for self-defense, that ours is a Christian nation. (It is, both technically and constitutionally, a secular nation, but let’s set that aside for the moment.) If Jesus Christ taught people that if someone were to strike you on the cheek to offer him the other, then why do gun rights advocates, many of whom claim to be Christians, want to have a legal right to fatally shoot someone? Though I have not studied the Bible in depth, I am unaware of any teaching of Jesus that permitted the taking of another person’s life.

I do not care for the prevalence of guns in our Society, and I do not agree with the twisted conservative reasoning in Heller (which, BTW, completely disregarded the longstanding principle of stare decisis). I feel that now, more than ever, it is important that we no longer elect conservatives to be President who would appoint even more conservatives to be Justices to the Supreme Court. Not only our freedom, but our lives, depend on it.

Cross-posted at The Zoo

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