« An Expected Journey | Main | 3 U.S.C. § 7 »

Monday, December 17, 2012

Safety For Ourselves And Our Posterity

That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

 - Article 1st, VT Constitution

Diving into the gun thing now, recall that I'm a firm supporter of an individual right to bear arms.  But let's do keep in mind the context and nuance involved.

As I've said before, I hate glib treatments of what is a fairly complicated issue, fraught with tension between personal liberty and the needs of society.  So the "join the militia, carry a musket" reduction of the 2nd Amendment annoys me just as much as "arm every teacher."  If we're to have a meaningful discussion and actually find the wherewithal to accomplish something policywise, we need to go a little deeper than bumperstickers and Facebook memes.

The "join the militia" crowd is certainly correct that the 2nd refers to a well-regulated milita, and that it is tied to the people's right to keep and bear arms.  There's an important reason for that: the Framers recognized a need for our young nation to defend itself, but they also had a great fear of standing armies.  

That's something generally missed by the Gohmerts of the world who misquote Washington.  Not allowing Congress to appropriate Army monies for more than 2 years was a moderate check on standing armies.  Giving Congress (and the President) a great deal of authority to regulate and call upon militias, and including the prefatory militia clause in the 2nd, was no accident.  And while we generally ignore the 3rd today, quartering of soldiers by a standing army really happened in colonial experience, so prohibiting it constitutionally was important to a great many people.

Point is that the Framers did not single-mindedly wish to arm the civilian population to fight off the tyranny of the government they were designing, but in large part to defend that government from threats, including...rebellion.  To ignore this aspect is to be disingenuous at best.

Regardless, to those who argue that the 2nd only protects some collective right and are against an individual right: give up, you've lost.  And really, to a certain extent, it doesn't matter.  All rights have limits because they can conflict with others, so the discussion should be about what the reasonable bounds are.

We have guidance, oddly enough, from a SCOTUS decision that I often cite as establishing an incorporated right to bear arms.  Again, Scalia's majority opinion in Heller (2008) said:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26 [Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

So the right exists, but its extent is still open for debate.  Perhaps we can't (nor would really want to) enact an outright ban of all weapons, but it certainly seems that we have a great deal of latitude to regulate gun safety so that citizens can exercise their rights to life, liberty and pursuit of happiness.

Prohibiting the manufacture, import and possession of particularly deadly weapons isn't too far out of the realm.  What about registration, requirements to carry liability insurance and have adequate, safe gun storage, taxing the shit out of ammo to pay for improved school security and mental health treatment, etc, under powers granted by the Commerce, Taxation and Elastic Clauses?  

That all remains to be tested, but does any of this place an undue burden on your exercise of your 2nd Amendment right?  I don't think so.

And if you really are concerned about government tyranny, consider this from Heller:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.

I'm more concerned about drones than tanks and bombers, but the point remains: you and your neighbors ain't gonna stop tyranny with your Bushmaster Blackout.

Here is an assuredly non-comprehensive list of rebellions and other violent incidents in the United States, not counting events before we had any officially organized government.  FTR, I'm making no value judgement on their merits, nor on factors that contributed to outcomes, just noting there have been quite a few examples of people attempting to fight what they viewed as tyranny with weapons:

Have fun stormin' da castle!  Not a great probability of success with violent resistance.  However, non-violent resistance has historically been rather successful at beating the house odds:

Our findings [using data on major resistance campaigns from 1900 to 2006] show that major nonviolent campaigns have achieved success 53 percent of the time, compared with 26 percent for violent resistance campaigns.

There are two reasons for this success. First, a campaign’s commitment to nonviolent methods enhances its domestic and international legitimacy and encourages more broad-based participation in the resistance, which translates into increased pressure being brought to bear on the target. Recognition of the challenge group’s grievances can translate into greater internal and external support for that group and alienation of the target regime, undermining the regime’s main sources of political, economic, and even military power.

Second, whereas governments easily justify violent counterattacks against armed insurgents, regime violence against nonviolent movements is more likely to backªre against the regime. Potentially sympathetic publics perceive violent militants as having maximalist or extremist goals beyond accommodation, but they perceive nonviolent resistance groups as less extreme, thereby enhancing their appeal and facilitating the extraction of concessions through bargaining...We assert that nonviolent resistance is a forceful alternative to political violence that can pose effective challenges to democratic and nondemocratic opponents...

Weapons have changed since our nation's founding.  So have non-violent tactics and strategies.  If you're really worried about tyranny, I'd submit you have a better chance defeating it by putting your guns down, and working to end drone strikes overseas, getting rid of our standing army, etc.

We live in a complex society, and gun violence is a complex epidemic.  There is no simple solution, and even sophisticated, multi-faceted approaches offer no guarantees, only mitigation of the problem.  Sure, criminals and crazies and commies will still get guns, but the work factor is increased if we have rational gun safety management systems in place, as I think the data bears out.

One of our biggest obstacles to figuring this out is we don't do non-violence very well.  At home we blame rape victims for what happened to them, taser people with little restraint, and execute innocents.  And while we rightfully mourn the children and adults in CT, we also use remotely-controlled weapons to end the lives of children and adults abroad.  Perhaps it's time to establish a Department of Peace that would at least work to alter our default posture and:

  • Provide much-needed assistance to efforts by city, county, and state governments in coordinating existing programs; as well as develop new programs based on best practices nationally
  • Teach violence prevention and mediation to America's school children
  • Effectively treat and dismantle gang psychology
  • Rehabilitate the prison population
  • Build peace-making efforts among conflicting cultures both here and abroad
  • Support our military with complementary approaches to peace-building.
  • Create and administer a U.S. Peace Academy, acting as a sister organization to the U.S. Military Academy.

Give it the same budget as we have for drones, say, and maybe we'll start getting a handle on our violent society and State.


December 17, 2012 in Constitution, Schmonstitution, RKBA, Suffering Fools | Permalink


Link for "german coast uprising" duplicates Fries Rebellion.

Posted by: Snarki, child of Loki | Jan 27, 2016 11:02:50 AM

Blame the Pennsylvania Dutch for that mistake.

Posted by: NTodd | Jan 27, 2016 12:33:54 PM

Post a comment