Paul on June 26th, 2015

tattered flag imageThe year 1790 is rapidly approaching and the authors of the new Constitution are getting a bit nervous because they do not yet have the votes from the states to ratify the new document.  Particularly troubling was the push-back it was getting from New York.  Many of its citizens were still very nervous about the emergence of a new potential menace in their lives, the government of United States of America.  New Yorkers were wary of the seeming power of the new government and were worried about their freedom and their protection should this new monolith become simply a home-grown version of the repressive English Crown and Parliament.  To deal with this, Alexander Hamilton, James Madison and New York’s own John Jay crafted a series of essays that came to be known as “The Federalist Papers”.  They were geared to assure New York and others that there were many protections in the new Constitution, a document that would replace the old, weak Articles of Confederation, a flawed blueprint that had made building and governing a unified, sure-to-expand nation impossible.

It was not until the emergence of what became a Bill of Rights that New York began warm to the proposed new form of government.  The Bill of Rights contained a wide array of rights, obligations, legal protections and powers guaranteed and/or reserved to the States and to the people.  In short, it turned out to be the deal maker in a contract that has lasted two and a quarter centuries.

One of the most contentious Amendments in the Bill of Rights in our age is the one that deals with guns, the Second Amendment:

“A well-regulated Militia, being necessary to the security of a free State, the right to keep and bear Arms shall not be infringed.”

In any accurate copy of the U.S. Constitution and its amendments the word “State” appears at least 105 times and with the strange exception of the 12th Amendment it is always capitalized or printed with an upper case “S”.  In every instance it refers to each individual State and not the U.S. Government.  When it appears (rarely) as a lower case word, the meaning of  “state” becomes less certain but can be interpreted by the language surrounding it and/or the intent and current implementation of the law.  The unambiguous, operative, upper case word in the Second Amendment is “State”.

Proponents of widespread use and ownership of firearms not only ascribe no meaning to the first 13 words of the Amendment but they oppose almost any restrictions by the federal government to rein in the growing wave of terror spawned by the proliferation of guns.  They often go to incredible lengths to advocate their position.  The latest and most troubling came from Fox News shortly after the Charleston tragedy.   The  Fox News’ monumentally insensitive, cruel and galactically stupid response (6/18) to the tragedy in Charleston that it would have been less bloody if the parishioners in attendance had guns is like advocating the way to put an end to the crime of rape is to say, “Yes”.  But this piece is not about Fox News.

Given the context of the word “State” throughout the entire U.S. Constitution, it could be argued that the Second Amendment is not about the federal government at all.  It is solely about the “State” and as such applies only to each individual State who may interpret the meaning of the Amendment as they see fit given their views about needing organized militias and the preferences of the inhabitants of that State.  Control of State militias is not a federal matter unless they constitute a compelling interest by posing threat to the nation.  That might suggest that some states who harbor a love affair with guns will make them more available which statistics clearly show will increase the casualty list at the hands of gun people but if that is the kind of environment the people of that State want, so be it.  If the public safety is at risk in that State because of the proliferation of guns, let the law suits by that state’s inhabitants  begin.  Part and parcel of this proposed, clear and long overdue shift of gun control focus to each State is the possibility that since they should control gun usage and ownership, there is nothing that would prevent States from allowing local governments to ban or severely restrict the possession and use of guns in their jurisdictions.  True freedom always includes choice.

While all of this unfolds, the federal government can attend to its enumerated powers, one of which is regulation of interstate commerce and the even more encompassing mission of providing a safe and secure environment for all its citizens…It’s that stuff about promoting the general welfare and securing the blessings of liberty.  (It is hard to imagine how truly free one can feel if he thinks the stranger next to him is packing heat!)  Congress is already busy getting products that result in injury and death off the market and few if any are guns.  Taking a serious look at weapons that are responsible for the death of over 30,000 citizens annually seems like a worthy target since to the cheers of gun-toters and non-gun people alike we already have been known to recall things like a baby’s crib that may have injured as few as 4 youngsters nationwide or a meat product that has killed no one but is suspect as possibly tainted.  By correctly removing the supposed link between the power of Congress and the Second Amendment, the “sacred” status of weaponry disappears so that Congress has the power to treat an AK47 with the same public safety interests as cigarettes and automobile airbags.  Legislation and federal action on airbags do not in any way restrict anyone from using a car, it just makes their use safer and in keeping with the public good and the broader mission of the government outlined in the Preamble to the Constitution of the United States.

The limitation on the kinds of weapons available to the citizenry is not in violation of anything like an infringement of the right to bear arms.  It simply defines the kind of arms that may be borne under the standard of public safety and responsible government.  Every other freedom that we cherish, speech, religion, assembly and press have had restrictions frequently based upon a doctrine called a “clear and present danger”.  What could be a more clear or a more present danger than an AK47 or Bushmaster Carbon 15 in the hands of a citizen of unknown character or intent?

How can one possibly conclude that the Second Amendment does not apply to the U.S. Government?  Because in every case throughout the Constitution when a clause applies to the federal government it says so, “The Congress” or “The Congress of the United States” or  “United States”.  Nowhere is the term “State” or “States” presented as meaning the United States government or any agency thereof.  Nowhere in the Second Amendment does the word “Congress” or the “United States” appear.

Let’s for the time being subscribe to Mr. Justice Scalia’s outlook about the impact of prior judicial rulings (stare decisis)  as defining the language of a statute and revisit the Second Amendment.  Most landmark decisions until very recently acknowledge the right of Congress to place limits on weapons.  But let’s ignore that in honor of Mr. Scalia.  Let’s use his standard…”The law means what it says!” (New York Times, 06/21/15). If the word “State” in that amendment means the same as it does in the 104 other times it appears in the document, then a reasonable interpretation is that the Second Amendment is an “enumerated” reserved power of each State to apply it as it wishes knowing that like any law there might be a judicial challenge.  Mr. Scalia has chosen to deal with the “…well-regulated militia” part by simply ignoring it as a way to keep faith with his literal-reading approach.  If you don’t read it, it doesn’t count.

It should also be noted that people who treat guns as something rising to the level of a God-given right should read about the kinds of people who are often the strongest, most uncompromising advocates of turning this nation into a free-fire zone.  This, of course, does not apply to the very rich and very smart makers and dealers of arms who might lose money if we make our streets safer by the elimination or more thoughtful and meaningful control of weapons. That as a given, there is pretty general agreement among experts (mostly medical) that the caliber, rate of fire, and sheer numbers of guns owned by a person is frequently inversely related to his intelligence, level of education and/or mental stability including certain sexual insecurities.

This take on the Second Amendment will find lots of critics.  I believe that the Second Amendment may have been misread for two and a quarter centuries.  We already know the first 13 words have been largely ignored but it is when one adds what I believe to be the real meaning…the State as the prime mover and active ingredient in the process, the game changes state by state.  Any alteration in that interpretation will require a Constitutional amendment not by citizens who want to limit guns (it is already there in a literal reading of the entire amendment)  but by gun advocates who want guns everywhere.  Even the NRA whose hands are awash with the blood of our citizenry will now have to use its freedom of speech (a.k.a. Citizens United-empowered legal bribery of politicians) not just to create the needed majorities in Congress but to do the same in three-fourths of the state legislatures of the 50 states in the union.  Democracy can be expensive for those who want to circumvent it.

In the meantime, keep the flowers, Teddy Bears and candles handy; be prepared for more ghastly news bulletins of homeland massacres; maybe check your family situation in the event of an untimely death by a random firearm as you walk down a street anywhere in America.  Your chances of meeting a horrific end at the hands of a gun aficionado are exponentially greater than winning the lottery.  You should be prepared.


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