I awoke an hour or so ago with guns on my mind. Maybe it was a hangover from a dream or, more likely, the residue of the many gunshots going off of late, and of the dust-ups resulting. I am no lawyer but I had Second Amendment questions stuck in my mind, too, especially that pesky and disputed language:
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.
I reflected uncouthly on the apparent awkwardness of the construction of the sentence. Was the intention to limit the amendment’s scope to militias? Or did the second half of the sentence stand on its own, irrespective of how one parsed the meaning of the first half? That suggested a textual analysis.
It also suggested a historical analysis: if the amendment revolved around militias what kind of militias? Were militias official bodies of the states, the other level of government under the federal system? Or were militias viewed more broadly as a function of the citizenry?
And that suggested in turn an analysis relative to the rest of the Constitution. On the one hand the Constitution vests government sovereignty in both the federal and state governments. But under the Tenth Amendment, any powers not specifically designated for either level of government are considered reserved for the people. Was that relevant?
I stumbled out of bed and turned on the computer to look for some sort of readable legal explication of the mess. I checked Facebook first and there found a posting–by someone well known in these parts, as it turns out–on just this point. The residue of those gunshots does seem to be everywhere.
This person–let us call her Madame M-.–passed along the very readable legal analysis I was looking for, an article from the Yale Law Review written by Sanford Levinson from the University of Texas School at Austin of Law. You can read that here. It is worth reading.
Levinson is in favor of gun restrictions but is intellectually honest enough to conclude that a fair reading of the amendment suggests that the gun proponents (or opponents of gun restrictions, if that is a better term for you) mostly have the law on their side. The author not only parses the factors above but throws in others for good measure, arguing in a clear and convincing way that, as Madame M-. put it:
(I)n this country, under the Constitution, citizens have the right to bear arms, for the purpose of self-defense, and because the Founders believed that an armed citizenry was a good idea, to offset the excessive power that would otherwise be concentrated in the state.
But the other reason this issue was jangling around in my mind had to do with the connection between the militia discussion and recent turns of events, both national and international.
We are without question in an era of more porous borders. And we are without question in an era characterized by new modes of warfare, an era that was kicked off most spectacularly in the 9/11 attack but that continues in new modes today. We see it in Paris and we see it in San Bernardino. It is not completely clear yet whether all this is leading to a new normal involving violence–and specifically gun violence–within our borders. But it is close and we could get there in, if you will, a heartbeat.
Does this not have relevance to the militia discussion? A standard complaint on the part of gun control advocates is that it is only the loony right wing that would see the need for a militia (however constituted) since America is a peaceable democracy and that fears of tyranny are unfounded. OK, set that argument aside then. What about the need for citizens to protect themselves against an external (or hybrid external/internal) foe, operating within our borders? It certainly seems to be the case that the argument for militias is not only premised on the need to oppose tyrants but the need to fight enemies as well. From the Levinson article:
In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the “importance” of the Second Amendment. He went on to describe the militia as the “natural defence of a free country” not only “against sudden foreign invasions” and “domestic insurrections,” with which one might well expect a Federalist to be concerned, but also against “domestic usurpations of power by rulers.”
And certainly the rush to buy guns in the wake of recent deaths suggests strongly that many Americans do not apprehend the situation in line with the narrative that the President and the New York Times are promoting: that our problem is not terrorism (or deinstitutionalization, or inner-city violent behavior) but guns.
For now Obama has a bully pulpit and he’ll continue to use it. But whatever you think of the intellectual merits of his argument, he does not seem to be making progress where it counts: with the people, and in politics. He can say it is all about the NRA but on this issue, at least for now, the tide is going the other way. And he does have that pesky Constitution to deal with. He’s pissed off for sure but he increasingly is coming off pissed off in the manner of Jon Lovitz playing Dukakis: “I can’t believe I am losing on this issue.”