Thursday, June 26, 2008

The best security of a free state

By Capt. Fogg

"Let your gun therefore be your constant companion on your walks."


-Thomas Jefferson-

If the reason for a constitutional protection of a natural right is unclear or incomplete or perhaps obsolete, does the law no longer protect that right? "Yes it does" has been an argument for ignoring the second amendment for a long time. The motivation and the argument of course aren't congruent. I believe that a great number of people think that private ownership of weapons is too dangerous to allow and so deem the law superfluous or obsolete and don't object when despite the clear language in the phrase "the right of the people to keep and bear arms, shall not be infringed."

The court has had to decide whether the right that is not to be infringed was intended to be contingent upon militia membership and only on militia membership or whether the necessity of a "well regulated militia" was only an example or illustration of the benefit. It's long been my opinion that this stated right was deemed as natural a part of freedom and personal liberty as the others set fort to be protected against government prohibition. As Liberals, the Framers were concerned with limiting the power of government to oppress, and private ownership of arms was firmly advocated by those I have read. I have reason to believe that Jefferson saw a militia as a potential bulwark against government rather than an agency thereof and indeed, the unique use of the word "infringed" seems to emphasize that the right should not be limited, qualified, nibbled away at or made conditional for any reason.

If the right to free speech had mentioned the necessity of that right to good government and democracy, would we then argue that only government officials were to enjoy it or that speech unrelated to government can be prohibited absolutely by State and local governments? I don't think so. I'm inclined to believe the reference to a militia is a further reference and not sole justification or exclusive qualification and I'm inclined to believe that it is the fear of weapons that has produced the arguments that the second amendment is ambiguous and therefore largely to be ignored and infringed upon at will by any local government.

Ignoring a seminal constitutional guarantee; infringing upon it or interpreting it so restrictively as to render it completely nugatory is not the stuff of good government and it is to be remembered that the constitution provides a clear way to remove it. No, it is not easy and requires far more support than simply allowing the government to break the law through judicial interpretation, but the risk of doing that is obvious. Should fear of treason infringe upon free speech, the right to assemble, to petition? Indeed such has too often been the case and should serve as a warning. Rights will be infringed by those with the loudest voice and the most money and by those with power to protect. Let's not go along with that process and feel that we are protecting ourselves. We need either to follow the constitution or amend it.

I'm a very vociferous critic of our Supreme Court and I feel everyone should be, but I have to agree with the decision that gun control laws have to take the constitution into account and are bound to be reasonable. I'm a bit sad that the Liberals on the court do not see it that way, but all in all, the Court has handed down several decisions of late that I approve of, from upholding Habeas to limiting the expansion of Capital crimes. I can only hope that some kind of balance prevails in the future.

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3 Comments:

OpenID expatbrian said...

Your argument is sound and well presented as usual, Cap'n. I disagree as to the intention of the founders but the language used certainly leaves it open to interpretation as you point out.

I have always felt that the terms "militia" and "the people" refer to the same group and of course, in those times, they were.

The militia was drawn from the people and had to be ready and available and armed at a moments notice. Thus, they had to have the right to keep and bear weapons. Not to mention that in those times, in a wilder world, in a new, unchartered frontier, where hunting was a necessity and not just a sport, it was practical and necessary to own weapons - certainly more practical and necessary than today.

The founders of course, could not and would not have even dreamed of the massive lethality of today's assault weapons, the uncontrolled availability of these weapons to everyone of any age, and the resulting carnage in the streets of American cities.

Had they foreseen these things, it is my belief that the language used would have been somewhat different.

And there is no longer a militia that is drawn from the people for the protection of the state. That responsibility has been turned over to a sophisticated military.

I don't believe that the founders intended the militia as a protection of the people from their own, very new government. I think the intention was added protection, to enhance whatever organized army they had. Today of course, that would only be necessary if our country was invaded, which is not likely.

However, times have changed, and I do agree, wholeheartedly, that it may become necessary in the future for Americans to defend their homes and their families against their own fascist government and its stormtrooping military.

If it ever happens, it will be a bloodbath and the people, the militia, which will be made up of a few sensible souls, a lot of rednecks just itchin' to shoot anyone, and a lot of drug crazed youngsters, will lose both the battle and the war.

But as the ultimate wake up call, it might be a good thing.

5:47:00 PM  
Blogger Capt. Fogg said...

I really do think that Jefferson at least was comfortable with the idea that revolution needed to be a permanent possibility as a way to keep government in line. His quote about the tree of liberty and the blood of patriots sums it up.

None the less, considering the number of home invasions we have in my vicinity and the frequency at which they are thwarted by armed occupants leads me to believe that being able to have a gun in one's home is a right that should be protected. Most of those invasions of course come in the poorer neighborhoods and I question the affluent people who have far better police protection who want to deny everyone that right.

Despite what the less responsible reporters are yelling - this decision does not allow anyone to shoot anyone any more than they did previously. All that has changed is the possibility of someone saving his life or his family's lives and going to jail for it.

10:01:00 AM  
Blogger Libby Spencer said...

I never understand why people quibble about the meaning of this one. It seems clear to me that they meant the people have the right to bear arms, including for militias.

3:05:00 PM  

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