Books I'm Reading: The Second Amendment: A Biography

It seemed an appropriate time to buy The Second Amendment: A Biography (Simon & Schuster Paperbacks, 2014) when I picked it up, remaindered, at a local bookstore last year. That was before the Parkland, Florida shooting. It now seems even more appropriate to have acquired it. Having just finished the book, I can say it's an excellent introduction not only to the historical context of the 2nd Amendment's writing but to the transformation it's undergone in the past few decades—its transformation from a clause written by the founders out of fear of a standing army controlled by a tyrannical government into a statement of a fundamental individual right to own guns, a transformation effected by controversial court decisions that have had and will continue to have tragic consequences.

The Amendment, stated in full, seems simple: "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." It is one of the shortest amendments to the Constitution. It has engendered disproportionate discord. While its interpretation—notably, whether it guarantees an individual's right to own and use guns—was first challenged long ago, by 1840 the idea was firmly established that the object of the Amendment was public defense not private gun ownership and that the term "bear arms" was understood to have a military meaning. This view was made explicit in a Tennessee Supreme Court ruling in that year stating, in part "A man in pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms...."

The push to subvert these ideas began in the 1950s and gained steam in the 1970s, although the individual rights view long remained a fringe view even then. By 2008, however, District of Columbia v. Heller had overturned about 200 years of precedent. What made that possible, was intense lobbying by the NRA. Author Michael Waldman points to a survey of law review articles on the 2nd Amendment from 1888 to 1959 and notes that not a single one in that period concluded the Amendment says anything about individual gun rights. The first to contradict that idea appeared in 1960, the start of a flood of writing supporting the view. Waldman quotes one Carl Bogus (a real historian, despite his name) who points out "From 1970 to 1989, twenty-five articles adhering to the collective rights view were published [in law reviews] (nothing unusual there), but so were twenty-seven articles endorsing the individual rights model. However, at least sixteen of these articles—about 60 percent—were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations." Thus, through strategic long-term planning, the NRA and its supporters were well on their way to success in changing the legal meaning of the Amendment already by 1989. Still, Waldman argues, historians had not at that time (and largely still haven't) changed their view of the meaning of the Amendment—despite subsequent legal developments—which is to say that current law, underpinned by Heller, defies logic and the majority view, reflecting a minority viewpoint vociferously defended by the NRA and other lobbyists for gun manufacturers.

It would take almost 20 more years to get us to the Heller decision, and a willingness to toss aside the 2nd Amendment's initial clause "A well-regulated militia, being necessary to the security of a free State...." Waldman points out that Justice Scalia, in his majority opinion in Heller, essentially ignored that clause, as does the abridged quote of the Amendment on the wall of the lobby of NRA headquarters, which reads only "The right of the people to keep and bear Arms, shall not be infringed" as if the prefatory clause does not exist. What allowed the Heller decision to, as Waldman puts it, use "pages of highly selective historical readings from two hundred years ago that ignore the history of the past hundred years" to essentially rewrite the Constitution was a shift in public opinion among a disproportionately vocal minority, coached and underwritten by the NRA. Essentially, the Heller decision became possible because of NRA influence on public opinion. The 2nd Amendment doesn't and never did mean what Heller proclaims it to mean, but Heller has established a new basis for interpreting the Constitution.

Waldman's book is well worth the time it takes to read for the deep context it gives to the current difference of opinion about gun law in the United States. The essential conclusion I have drawn from reading the book is that I have been right in my conviction that the 2nd Amendment's meaning has been perverted, that District of Columbia v. Heller, like Citizens United, was a disastrously misguided decision, but that we are stuck with it. We are forced to live with it and to die with it, for the time being, at least.

Miscellaneous: The March for Our Lives (March 24, 2018)

It was heartening today to see Santa Rosa's Courthouse Square filled with protestors of all ages demanding better gun control, but particularly heartening to see so many young people participating and speaking out. Maybe we really have reached a tipping point? I say, from now on, let an "A" rating from the NRA be a new kind of scarlet letter, standing not for "adulterer" pinned on the breast of Hawthorne's Hester Prynne, but standing for "accomplice" and "accessory" to murder. Let the NRA "A" rating be no longer a badge of submission to the NRA worn by spineless representatives in thrall to the gun lobby, but a guide to voters no longer content to tolerate politicians ignoring the will of the majority of the people on this issue.

Miscellaneous: Mass School Shootings--Here We are Again

Personally, I believe the 2nd Amendment doesn't (and was never intended to) guarantee an unrestricted right to all citizens to own any kind of firearm. I believe the NRA and gun rights supporters have perverted the meaning of the 2nd Amendment, but, let's set that aside for a moment. Let's assume it DOES guarantee that right. If it does, then, on the face of it, it imposes no restrictions on the kind of arms citizens are allowed to bear (throwing out the well-regulated militia idea as well, for the sake of argument and ignoring the fact that "bear arms" was never, until recently, understood to be the equivalent of "own a gun"). Logically, that means all US citizens have a constitutional right to own and use ANY kind of arms--simply, "to bear arms"; this is the NRA position. There seems to be a logical inconsistency here, though. Why stop at an AR-15 then? US citizens, by this interpretation have the right to own bazookas, cruise missiles, even ICBMs with nuclear warheads, if they can afford to buy such a thing. Further then, the authorities are failing to uphold the Constitution if they refuse citizens the right to buy nuclear weapons, cruise missiles, bazookas, machine guns--anything.

Crazy? Maybe, but even the Lapierres of the world seem to balk at claiming an individual's right to own an ICBM. To own a cruise missile maybe? Probably not. To own a bazooka? Maybe: I think there are probably a few gun rights activists who are angry they can't own a bazooka. So, even the staunchest gun advocates draw a line SOMEWHERE--somewhere just beyond a bazooka, perhaps. If so, that means even gun rights advocates recognize a class of weapons the ownership of which is NOT protected by the 2nd Amendment--that is, that the 2nd Amendment does not guarantee an individual's right to own ANY kind of weapon, that there are exceptions, limits. This is the common ground between gun control advocates and gun rights advocates.

I have to wonder: on what basis do gun advocates concede (if they do) that the Constitution does not guarantee citizens the right to own certain kinds of arms--say, a cruise missile? Presumably they would acknowledge that it is because such a missile is a weapon of war designed solely for the purpose of killing many human beings quickly. That suggests an obvious question: is an AR-15 different? I don't think it is. Someone please explain to me how an AR-15 or similar small arm is different in that respect from a bazooka, a cruise missile, a nuclear ICBM?

But, of course, this is all nonsense. The Amendment was written to protect state militias (well-regulated state militias) from the potential threat of a tyrannical government wielding a standing army against the people, and, historically, "to bear arms" has almost always meant "military service," not "own a gun." The Second Amendment says nothing about a private right to own weapons, and virtually any child can see that a right to the possession of anything has no place trumping the right to live in safety and with piece of mind.  It's time to take back the 2nd Amendment.

Miscellaneous: The Worst Mass Shooting in American History--Until the Next Worst One

It's raining again--a shower of thoughts and prayers from Republican senators who voted against a ban on assault-style weapons.

Maybe these senators should keep their thoughts and prayers to themselves and instead support commonsense reform of America's insane gun laws.

But I guess that's not as lucrative as supporting the NRA.

[Update: We have a new weapon in the arsenal for dealing with mass shootings: "warmest condolences."]

Miscellaneous: Here We Go Again--Mass Shooting in San Bernardino

Another day, another mass shooting. There's no way to stop this sort of thing, you know. It just happens. Nothing we can do. Thoughts and prayers to the victims and their families.

Add San Bernardino to the list. Here's a fun link--Mass Shooting Tracker.

Miscellaneous: The 2nd Amendment is the Problem

The idea that guns should be controlled seems so obvious and logical to me that I find it difficult even to weigh the issue (it seems already clear, not requiring much thought), but the recent massacre in Oregon and the reaction to it among gun rights advocates set me to thinking about logical arguments supporting gun control. The automobile analogy makes most sense to me. The idea surely isn’t novel, but why isn’t it persuasive to gun rights advocates?

Why do we register automobiles? Why do we require drivers to have a license to operate a motor vehicle? Why do we require drivers to have insurance against accidents and to carry proof of that insurance? Why do we require vehicles to display proof of registration and registration renewal prominently in the form of a license plate? Why do we require vehicle owners to keep their vehicles in good repair?

Have you ever asked yourself these questions? At first it all looks complicated. One question seems to lead to another and another. But one answer seems to apply to most of these questions: Cars can kill people, and, therefore, they should be regulated. All these arguments would seem to apply to guns. If we can regulate cars tightly, we should be able to regulate guns tightly.

Why isn’t that persuasive to gun rights advocates? Is my conclusion outrageous, outside the bounds of common sense?

We register autos because cars can kill people and we want to know who is responsible when a car is involved in causing property damage, an injury, or a fatality. We require a driver’s license so that people know the basics of operating a car safely—in the hope of avoiding property damage, injuries and fatalities—and to identify the operator. We require insurance because cars can kill people and we believe it just that victims of auto-related harm should be provided for and that victims of automobile fatalities and their families should be compensated. We require vehicles to be in good repair, because a poorly maintained vehicle can cause an accident and auto accidents kill people. We accept the risk, because cars are useful—for pleasure, for sport, for moving things and people from place to place—but we regulate cars tightly nevertheless. We require registration and insurance and we require these to be renewed annually. We require operator’s licenses that must be renewed periodically. We don’t give licenses to very young people or to people judged physically or mentally unable to handle an automobile. Because cars can kill people.

So why not guns—which are far more dangerous and, on the whole, much less useful?

Why not? Because, the gun lobby has persuaded too many people to believe that individual gun ownership is protected by the constitution. I believe that’s a mistaken interpretation, as many others do (and many deny, based on historically recent supreme court decisions that have destroyed the original intent of the Amendment). What’s clear is that the Amendment is confusingly worded. I think we need to amend the 2nd Amendment to say clearly what we believe it ought to say. The question is: What, as a nation, do we want it to say? If, as I believe, the Amendment’s intent was to limit federal interference in the maintenance of well-organized militias for local self defense (and only that), then the Amendment should say that. Guns in the hands of individuals in all other contexts then become like automobiles—just another potentially dangerous tool. If we can tightly regulate automobiles because automobiles can kill people, then surely we can do the same with guns. Let every gun operator be required to take training to obtain an operator’s license that must be renewed periodically. Let every gun in the nation be registered annually. Let every gun prominently display a unique identification plate. Let every gun owner carry insurance for each gun against its use in a criminal or accidental act that destroys property, maims, or takes a life. Let every gun owner be required to keep proof of adequate insurance with the gun at all times. Let all guns be required to undergo periodic safety inspections.

I would go further, arguing that some kinds of guns should be banned entirely, on the grounds that their potential danger far outweighs their potential utility. Just as most people don’t need potassium cyanide at home, most people don’t need an automatic assault weapon at home. If the 2nd Amendment is clarified, guns become easily controllable—like any other potentially dangerous tool. The NRA and its allies have been smart to focus on the supposed special constitutional protection of individual gun rights. The Amendment is the problem. We need to take back the 2nd Amendment by making it say unambiguously what it was originally meant to say—or, at the very least, to decide what, as a nation, we want it to say today.

And we hear about only the big ones--mass shootings, that is. Here's a link to a site that tracks mass shootings in the US (apparently defined as four or more people shot in a single incident). Mass Shooting Tracker.

[Update: A recent piece in The NewYorker argues, as I do, that the amendment does not guarantee individual gun rights (in fact, the author argues that the Amendment was designed to allow regulation of guns outside of an organized militia). He therefore believes the Amendment does not need to be amended. I continue to believe that clarifying it would be helpful.]

Miscellaneous: Yet Another Deadly Mass Shooting

At the end of last month, in Santa Barbara, California, a young man, armed to the teeth (with apparently legally acquired weapons) randomly shot and killed six people and wounded another 13. It's sickening that we have to talk about such an incident yet again. In my view, the problem is at least partly that we've acquiesced in accepting false interpretations of the 2nd Amendment. The idea that the 2nd Amendment gives every individual the right to possess and carry deadly weapons is wrong and historically novel. James Madison's original wording of the Amendment makes it absolutely clear what was intended. A well-regulated militia is unambiguously equated with organized military service.

"The right of the people to keep and bear arms shall not be infringed; a well armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
– Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 451. 

The 2nd Amendment, although confusingly worded in its final form, does not say what gun advocates want us to believe it says. It says nothing about the gun rights of individuals. It’s time to take back the 2nd Amendment.

What a country this is: Legal to carry a loaded AK-47 down the street, illegal to carry a glass of wine down the street. 

Miscellaneous: Take Back the 2nd Amendment (December 22, 2012)

It seems to me that to take back the 2nd Amendment would be to restore its reading and interpretation to what it has been through most of US history--that the government shall not have the right to prohibit the creation and maintenance of a well-regulated militia. The current pro-gun, NRA-created and abetted view of the 2nd Amendment that claims all Americans have the right to own as many guns as they like and guns of any type whatsoever, regardless of their redundant lethality is recent and anomalous, as far as I can tell. With this in mind, I Googled the phrase "Take back the 2nd Amendment." Should I have been surprised to find a Facebook page with that name and that it's a page run by gun advocates? I'm baffled. What do they mean by taking back the 2nd Amendment, I wonder?

Miscellaneous: "Typical for Mass Shooters" (December 12, 2012)

Yesterday, yet another killer armed with a semi-automatic weapon opened fire in a crowd, this time in a shopping mall in Portland, Oregon. He killed two people and wounded several others before killing himself. The shooter was 22 years old. How does a young man of 22--or of any age--get his hands on an assault rifle? It must be a fairly easy thing to do, which says something about our idiotic gun laws that no one wants to hear.

But we are used to such things by now. They have become positively normal. The tone of news reports about the incident is indicative. One report I read noted that the young man wore a ski mask and went on to quote former FBI agent (and ABC News contributor) Brad Garrett as saying "The shooter's mask is typical for mass shooters, who often dress up in costume or wear something other than their regular clothes when they open fire in public." Is it just me? Or is it not deeply depressing to hear a news commentator use the term "mass shooter" as if he thinks it a rather ordinary category of persons--like "golf player" or "gift shopper"? "Open fire in public"? It's what mass shooters do.

[Update: And today, December 14, a man armed with three guns walked into an elementary school in Newtown, Connecticut and killed (besides himself) 20 young students and six staff members. Earlier in the day, he shot and killed his own mother. I know all the arguments, but it still seems to me that we REALLY need to do something about the availability of weapons of mass murder in this country.]

Miscellaneous: Another Shocking Gun Incident? (July 20, 2012)

Breaking news. July 19, 2012. Colorado gunman kills 12, wounds scores at Batman premiere. Nation shocked.

Nation shocked?

Really? I doubt it. Is this news depressing? Yes. Tragic? Yes. But will the Batman shooting really surprise anyone?

It doesn't surprise me that we've just suffered yet another mass shooting. It won't surprise me when those opposed to our moronic gun laws hope hopelessly yet again that this incident may lend momentum to their cause. It won't surprise me when the gun advocates bridle and moan and say in response that we need more firearms in the hands of more people--more guns so that a prepared and vigilant hero can stop cold the next rogue abuser of guns (remember, it is people that kill, not guns)--by slaying him before he can slay others. But where are these heroes? Where were they last night? They seem as real to me as the superheroes so popular in the movies today. They seem as real to me as Batman.

What's new?

[Update: August 5, 2012. It's been only a little more than a month since I wrote this. In that time, we've had another mass killing--at a Sikh temple in Oak Creek, Wisconsin, six dead. Shocked?]

[Update: Brookfield, Wisconsin, October 21, 2012. Four dead. No heroes to be found. Shocked?]

[Update: Portland, Oregon, December 11, 2012. Three dead at shopping mall, including shooter armed with automatic weapon. Shocked?]

[Update: Newtown, Connecticut, December 14, 2012. Gunman opens fire at elementary school, killing 20 children and six staff members and himself. Maybe this one really will shock us into some kind of action. It won't have been soon enough.]

[Update: Shooter in Blair, County, Pennsylvania, near Altoona, December 21, 2012, kills three on a rural road. The shooter is killed by state troopers. At least five others wounded. Shocked?]

[Update: Shooter in Webster, New York, December 23, 2012, shoots and kills two firefighters and wounds two others after apparently setting fires to lure his victims in. Shocked?]

[Update: January 20, 2013--Gunman in Albequerque, New Mexico kills five with an AR-15, the same gun used to kill 27 in Newtown, Connecticut. Shocked? Happy New Year.]

And on, and on, and on.....