Here we go again … Gun Control vs. Individual Right to Bear Arms

It is predictable that this debate flares up again and again: A mass shooting of one kind or another occurs in the US on average on an almost daily basis. And this does not even include all the senseless killings of drive-by shootings and accidental shootings in the home. And these repeated hand-wringing debates always seem to completely miss the main point:

 The cause of most of these senseless deaths is the uncontrolled proliferation of firearms in the US.

As the President pointed out in his impassioned plea to the nation, the US does not have a higher proportion of mentally ill than other first-world nations, yet our rate of gun violence and deaths from firearms is exponentially higher than in all other first-world countries. The difference is that all other first-world societies have strict laws controlling the ownership and use of firearms.

Again we see the raising of bogus straw-man arguments about the role of mental illness and the benefits of expanded background checks in order to deflect from the real issue: uncontrolled proliferation of firearms of all sorts in the US.

This endless cycle of senseless violence and death, followed by a burst of hand-wringing debate, will not be resolved until the core issue is resolved: Does the 2nd Amendment guarantee an individual’s unrestricted right to arm himself to the teeth, independent of his (or her) current membership in “a well regulated Militia”?

As described in a New Yorker piece by Jeffrey Toobin (http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment), written after the Sandy Hook massacre, the interpretation of the 2nd Amendment in the US until well into the 1970’s accepted the ability of the Federal Government to regulate the ownership and use of firearms. No one seriously objected, for example, when in the 1930’s federal laws were passed to prohibit ownership of machine guns and sawed off shotguns, favorite weapons of Mafia gangs. However, in 1977, according to Toobin, the NRA was taken over by a group of conservative extremists, who then initiated a concerted effort to change the interpretation of the 2nd Amendment.

This effort by the NRA culminated in the 2007 ruling in “District of Columbia vs. Heller” (http://www.supremecourt.gov/opinions/07pdf/07-290.pdf), where expert testimony, academic research, and “Friend of the Court” briefs funded by the NRA constituted important underpinnings for Justice Scalia’s contorted ruling in favor of individual, uncontrolled gun ownership.

Justice Scalia first addresses the rather odd formulation of the 2nd Amendment, consisting of a “prefatory clause”, or statement of purpose (A well regulated Militia, being necessary to the security of a free State,..), and the “operative clause” (… the right of the people to keep and bear Arms, shall not be infringed.) Although Scalia states that his interpretation was guided by the principle that “[t]he Constitution was written to be under­ stood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning”, a generally accepted standard of constitutional interpretation, Scalia then proceeds to use convoluted arguments, in conjunction with esoteric, and doubtful “academic” and linguistic studies, to “prove” that the “prefatory clause” does not limit in any way the “operative clause”, and bingo, we have the unconstrained statement that “[T]he right of the people to keep and bear Arms, shall not be infringed.“

This interpretation is completely contrary to Scalia’s supposed guiding principle that “[t]he Constitution was written to be under­ stood by the voters;…” No one with the reading and comprehension skills of the average fifth grader would discard the statement of purpose (A well regulated Militia, being necessary to the security of a free State,..) as irrelevant and meaningless.

Although at this point, having invalidated (in his mind, anyway) the constraining effect of the “prefatory clause”, Scalia is essentially home free. However, showing the full extent of his perverse intellectual arrogance, he still engages in unbelievably convoluted arguments, all contrary to the principal that “[t]he Constitution was written to be under­ stood by the voters;…”, to further eliminate any possibility that the “operative clause”, “…keep and bear Arms…” might implicitly imply limitations to a militia only.

Even Justice Scalia has retained a certain amount of “common sense”, and recognizes that allowing individuals to “keep and bear Arms” cannot be allowed to include all kinds of modern weaponry. So again he engages in perverse intellectual masturbation to come up with the quite arbitrary constraint that this “preexisting right” to keep and bear Arms applies only to those type of weapons “in common use at the time” - at what time? at the time of writing the Constitution, or, since these rights are supposedly pre-existing, at some previous historic period? So is the allowed weaponry restricted to primitive stone-age clubs, bows and arrows, swords, or primitive pistols and muskets in use in the Constitution writing period? Certainly weapons “in common use at the time” do not include automatic or semi-automatic handguns.

Even though the crazy fringe of the “gun lobby” consistently makes the argument that the unconstrained right to keep and bear Arms is necessary to protect us from “the government”, nothing in Justice Scalia’s opinion supports that view. On the contrary, in his concluding paragraph he refers only to “…handguns held and used for self-defense in the home.” Thus, we are to believe that the framers of the Constitution and Bill of Rights, whose overriding concerns were in protecting citizens from arbitrary powers of “the state” and of balancing States rights against federal powers, including the right of States to maintain their own Militias, that these framers were worrying about the ability of individuals to have handguns in their home to protect themselves, and that the thus wrote an Amendment specifically for that purpose.

On balance, as stated by Toobin, even with this “District of Columbia vs. Heller” ruling, which seems to restrict the meaning of the 2nd Amendment to an individual having a handgun in the home for self-defense, there is ample leeway for federal legislation to control the types and spread of firearms. But our political elite, and even most of the media, have been so cowed by the NRA that the current political and public dialog is restricted to extending background checks and diverted to the issue of mental health.

One final note: there exists a strong argument, originated by the German philosopher, sociologist and jurist, Max Weber, that a state can only exist if it holds a “monopoly of violence” (https://en.wikipedia.org/wiki/Monopoly_on_violence); anything else will inevitably result in anarchy. The situation in the US today is rapidly approaching anarchy: there are large areas, especially in our cities, where the “rule of law” is a fiction; young children are not safe in their homes (drive-by shootings) or in their schools (mass shootings), and the populace in general is not safe from gun violence in theaters, shopping malls or even in the central business districts during daylight hours. The “solution”, according to 2nd Amendment absolutists, is to arm everyone. With that, our society would devolve into one huge “Gunfight at the O.K. Corral”.