Category Archives: U. S. Constitution

A Sacred Document of a Sacred Idea

Take a look at this document:

constitution_1_of_4_630

This is the Constitution of the United States of America. I get into tangles all the time over at Mikeb302000 about the nature of this document. Mikeb loves to point to the elements that offend the modern leftist–slavery and the Second Amendment being the predominate targets. By contrast, I see our constitution as sacred.

Understand that by sacred, I don’t mean perfect or beyond change. I have discussed here, for example, how I wish the first two amendments were written and what I see as circumstances that would justify overthrowing the constitutionally legitimate government. Certainly, the document itself has provisions for amendment, showing a recognition from the start that changes might be necessary as time went by.

That being said, there are fundamental principles of our constitution that should not be changed. It establishes a nation and defines the government that will regulate that nation, and that definition sets strict limits on what powers each branch of the government may have. It divides government into three branches to place further limits on the extent of that power. The first ten amendments enumerate rights that the Founders regarded as necessary to protect by name.

But the argument gets made that we don’t really need such protection anymore. Surely a modern, democratic society can maintain rights by the consensus of the people.

Think again. An example of the dangers of that point of view came up yesterday (20 August 2013) in an interview on NPR’s All Things Considered with Alan Rusbridger, editor in chief of The Guardian. I’ve given a link to the full story, but I’m going to point out one significant statement that Rusbridger made:

And this may be – sound strange to American listeners, but there is no First Amendment in the U.K. and there is no bar on prior restraint, the idea that the state could prevent a news organization from publishing by taking back its source material.

Caught it, yes? Without the First Amendment, there is nothing in Britain to prevent the government from blocking publication of a story.

What story are we talking about? The one reported by Glenn Greenwald of Edward Snowden’s whistleblowing about the American NSA’s invasions of privacy. The British government also detained Greenwald’s partner, David Miranda, under powers given by terrorism legislation. This is one of those coincidences that those of us who enjoy language note, since it was another Miranda who caused a limitation of police power in the United States.

There are people who claim that all of this security theater is keeping us safe, who see what has happened in Britain as a model for what should be done here. To them, we are nowhere near tyranny, so we should just shut up and trust the government. (I’m talking to you, Mr. President.) That kind of sheepish attitude is unbecoming for people who have overthrown a government that was not respecting their rights, fought a civil war to defend rights, and who claim to love liberty today. The only way to guarantee that we don’t fall into the kind of police state that some of us warn about is to fight against every step in that direction.

A License to Insurrection?

A while ago at a gun control blog that I frequent, namely Mikeb302000, we had a discussion about whether the Constitution of the United States authorizes a rebellion against the govenerment.

This question arose because some who advocate for gun rights have argued that the Second Amendment was written to give the American people the power to rebel against a U.S. government gone agley. This line of reasoning suggests that since the Founders had just fought a war of rebellion against the British Empire, they understood the need for that option to be available to future generations.

Of course, this thinking ignores two facts, human nature and the nature of law:

1. Rebels declare themselves to be against authority precisely until they are themselves the authorities. At that point, they see themselves as deserving the loyalty of the people they rule.

2. Legal systems rarely, if ever, include permission to overthrow them, even if pressing conditions exist.

So do we have a right to rebel against our government?

Yes–with caveats.

Whenever government overreaches, it loses some measure of its justification for existing. We in the United States have been fortunate for a long time that our government has kept itself within sufficient bounds that its excesses have been remedied–for the most part, but not altogether, alas–through the courts and legislatures. The War on Terror of the last more than a decade has called into question the legitimacy of our recent and current administrations, as we have seen within the last few days, thanks to the revelations of NSA spying on American telephone calls.

Obama’s response to this news?

If people can’t trust not only the executive branch but also don’t trust Congress, and don’t trust federal judges, to make sure that we’re abiding by the Constitution with due process and rule of law, then we’re going to have some problems here.

I do not take comfort in that. In fact, I hope that we do not come to a point at which our government loses all justification and deserves to be overthrown. But the question remains as to how such a rebellion would itself be justified. I answer that with the following two points:

1. The American Revolution was based on the premise that the new government to be created by the rebels would offer better protection of the rights of the people than the British government. It’s the equivalent of a man asking a woman to divorce her husband on the grounds that the new man can treat her better. That may be true, but the new fellow loses his claim if he falls short.

2. More than that, morality and rights are prior to law. That is to say, we are born with rights. Morality is how we protect each other’s rights while we live together. Law is a tertiary system that defends and depends upon the first two.

Governments exist to protect the rights of people living within their jurisdictions and to encourage through cooperative effort the growth in areas such as culture, technology, and so forth. Government is justified when it uses its power to the furtherance of those ends, and its legal system provides the detailed explanation of how it may operate.

Perhaps the Founders wrote the Second Amendment with these ideas in mind. But I prefer to avoid the intentional fallacy and take the text as it’s written. Beyond that, we must keep nested priorities in order and recognize that we do not justify the concept of insurrection in law but in higher sources.

Understand that this is not advocating treason or rebellion. It is instead a reminder to all of us, both citizen and government agent, that we must work within the system, so long as that system is serving its purpose. As long as we all remember that requirement, there should never be the need for anything else.

Tucson, Again

I was going to move on from the subject of the Tucson shooting, having said my piece on it already, but a friend sent me this link:

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/10/AR2011011006308.html

and there’s too much there to leave alone.  The article gathers together much of the nonsense that is the push for gun control.

The author, Richard Cohen, declares the nation’s gun laws to be insane in his first paragraph.  That is our only point of agreement.  I can buy a book on-line; I can buy a bottle of liquor in any state in the Union (except Utah?), but I can only legally buy a gun in my state of residence.  I can drive on any public road in the country, thanks to my Arkansas driver’s license, but my carry license is only honored by those states that have a reciprocal agreement with my state.  That’s thirty-seven, so far, and the trend is in the right direction, but imagine if California didn’t allow me to drive within its borders.  I don’t suppose that what I’ve named is the kind of insanity that Cohen meant, though.

His article jumps immediately into explaining what his definition is:

“The American culture, the American gun culture, insists on a constitutional right to bear arms – even concealed weapons such as a Glock 19 semiautomatic handgun capable of doing immense damage.”

Indeed.  That, among much else, is exactly what we insist on.  Those of us who support carrying a concealed handgun do so because we want to be civil.  We don’t necessarily oppose the open-carry movement, but we accept that some people are disturbed by the sight of a weapon, and we’re willing to keep ours hidden.  We support semiautomatics because they are effective tools for self defense.  So are revolvers, depending on the circumstances.  Handguns, as Jeff Cooper pointed out many times, are weapons that a person can wear always.  It’s the weapon that we have on our persons when an emergency arises.  If we know that trouble is coming, we either get out of Dodge or fetch a rifle.

Cohen heads on to say that the shooter in Tucson wasn’t asked any questions when he bought his Glock.  Um, when was the last time that Cohen went gun shopping?  For every firearm that I have bought from a dealer, except for my blackpowder revolver, I’ve had to fill out a form that asks me whether I’m a drug addict or illegal user, a felon, a stalker, and other such nefarious types.  Lying on that form is a crime–a felony, if I recall correctly.  In Tennessee, I then had to wait around while the store owner called in for a background check to verify my answers.  (In Arkansas, those of us with a carry license are spared that.)

Loughner passed that check, apparently, and as much of an outrage as the shooting was, I’m glad that he passed.  I don’t, absolutely don’t support what he did, but at the same time, I don’t want the government having lists of citizens who might do something wrong in the future.  Remember that Ted Kennedy somehow got on the No-Fly list.  If the government is going to take rights away from the citizens, it must act in the open and according to due process.

We’re treated to statistics provided by the Brady Campaign that claim that “more Americans were killed with guns in the 18-year period between 1979 and 1997 (651,697) than were killed in battle in all wars since 1775 (650,858).”  That’s about 36,000 a year during the period.  Other sources put the number at something like 26,000.  At the same time, some 40,000 individuals died each year on the highways.  About 400,000 died of tobacco-related diseases yearly.

What we see here is the way that statistics are weak arguments.  The death rate given is about one to three persons in 10,000 in America each year.  Tobacco deaths are about one in 750 per year.  The firearms deaths also lump all kinds together, self-defense shootings, police shootings, and suicides along with accidents and homicides.  A homeowner who puts down a would-be rapist is statistically the equal of someone who commits murder with a firearm.  A person who choses suicide as opposed to lingering in the pain of cancer is counted along with the teenager who kills himself when his girlfriend breaks up with him.

The author sees these numbers as a reason for adopting restrictions on access to guns.  He observes that constitutional amendments can be “repealed and then reworded,” suggesting that we ought to be allowed long guns only.  But he admitted that a long gun was used to kill John F. Kennedy.  I have to wonder if Cohen would be satisfied with restricting me to rifles and shotguns.  Once the amendment process begins, the urge to take away more and more could be irresistible.  Let’s recall, though, that the only amendment to restrict the rights of Americans was the Eighteenth–in other words, Prohibition.  We know how well that worked.

The article does discuss Loughner’s possible motivations, recognizing that “the mind of a madman is a bog. It’s easy to get lost.”  There’s the answer.  In a free society, on rare occasions, a crazy person will commit an outrage.  That’s the risk of a free society.  A police state, by contrast, is what we would have to accept to remove guns from this country.  Here’s another number to consider:  200,000,000.  That’s the estimate of how many firearms are privately held by U. S. citizens.  Do you really want your government to demand that we turn them in just because one lunatic did something outrageous?  Do you really believe that we would turn them in?  Do you also believe that if Loughner had not been able to get a gun, that he would have given up?  He could have rented a panel truck and caused similar carnage.

Life is dangerous, and that fact makes it more interesting.  Almost ten years ago, I heard a call to make jet fuel non-explosive, in the belief that the Twin Towers wouldn’t have fallen if that had been the rule.  Of course, jet fuel is jet fuel precisely because it’s explosive.  With it, we can travel the world.  A small number die in airplane crashes and attacks, but most flyers get where they’re going without harm.  The same is true about firearms.  The vast majority of gun owners abide by the laws.  We have no need for an idiot’s veto that will accomplish nothing worthwhile.

Principle for Response

The shooting incident of 8 January 2011 has brought out the chorus of reactionary voices that always shriek after any outrage.  The current demand is for limits on both free speech and gun ownership.  Likely, these calls will fall silent as time passes, but they are pointlessly dangerous, and the sane among us need a means of responding.

With that in mind, let’s consider the first two amendments to the U. S. Constitution:

1st:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2nd:

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.

From the perspective of a modern libertarian, those two are badly written.  It has taken our nation a long time to figure out what was meant, and those who see the document as a living text see these lines differently from the vision of those who wish to hold to the original intent, whatever that may be.  There is an irony that people who strongly support a broad interpretation of one amendment often want a limited reading of the other.

Here’s what I wish were the actual text:

1st:

Persons within the jurisdiction of the United States have the right to create and distribute their own expressive works, to practice their beliefs, to assemble in groups, and to petition their governments in any manner that does not directly impede the ability of others to do the same.

2nd:

Citizens have the right to own and bear small arms and the right to use them for legitimate purposes, including self defense.

But that’s not how the amendments were written, and we have to deal with the text that we have.  Since the First Amendment mentions only speech and the press, a strict interpretation could be used to limit what is permissible on the Internet.  Those of us who express our opinions in articles such as this one might find that they have annoyed someone in power who would then use the force of law to stop us.  Or the Second Amendment might be read to mean that only an approved state militia is allowed to possess arms.  Weapons of a particular caliber or magazine capacity could be taken from private citizens, as ultimately could any weapon that the government doesn’t want us to have.

That being the case, I want the broadest interpretation of both amendments to be applied.  I do recognize that we’re talking about powerful objects here.  Guns and speech (oral or written) have changed the world many times over.  But that’s what free citizens are able to do–remake their lives as they see fit.

My proposal, then, is that whenever we hear an attempt to ban one, we ought to add in a call to ban the other and see if we could live with that.  You want to ban magazines that can hold more than ten rounds?  Would you accept a similar ban on books of longer than one hundred pages?  You want to ban hate speech?  What about semiautomatic rifles?  I live in Arkansas, but I can buy a book in any other state or have one shipped to me.  With a few exceptions, I can only buy guns in my state of residence.  Depending on the time and the community, certain books, video games, and music have been banned, while the same items were sold in other areas.

The fact is that any government that can take one away from us can take the other.  Today’s government will not be in power tomorrow, and any overreaching that you tolerate now because it goes in a direction that you like can be turned by the next administration, court, or Congress in ways that you would find unacceptable.

The general principle here is that whether we like it or not, both expression and guns are protected in the same way in our Constitution.  Taking one away would be as easy as taking away the other, and if we value our liberties, we must refuse to permit the theft or voluntary loss of either.