Why gun rights advocates don't trust Clinton on the second amendment
At the final presidential debate last week, Clinton reiterated her position that the supreme court was wrong in its 2008 decision in District of Columbia v Heller, which overturned Washington DC’s ban on handgun ownership, as well as a law that required other guns in homes to be “kept nonfunctional”.
In a controversial 5-4 decision, the court ruled that Americans have a constitutional right to have and use firearms in their homes for self-defense.
Clinton had dodged giving a clear answer about her opinion of the ongoing case during a presidential primary debate in early 2008, though she suggested that the supreme court would probably find a full ban on handguns unconstitutional.
But in 2015, the Washington Free Beacon reported, Clinton told an audience at a private event that “the supreme court is wrong on the second amendment. And I am going to make that case every chance I get.”
That’s an opinion that is shared by many people – including some of the liberal justices on the supreme court, who argued in their dissent that the second amendment was intended to protect the right of people in each state to form militias, not to limit lawmakers’ ability to regulate civilian gun ownership.
But that particular view is not one that is popular with the general public.
A Gallup poll from 2008 found that 73% of Americans believed the second amendment “guarantees the rights of Americans to own guns”.
As this fairly thorough Guardian article shows, Hillary is about as friendly toward individual gun rights as the most ardent right to lifer is to abortion rights.
Personally, I think it is true, as the text of the thing makes clear, that the purpose of the amendment was to ensure the states could maintain militias, which latter at the time relied on the people to have their own guns.
The historic successors of the militias of the various states are the National Guards, which do not at all rely on their members to buy their own weapons, though of course that could change.
But in various states and locales in the US there are unofficial, private associations of citizens, some or all of whom own suitable weapons, that maintain on their own some state of military or paramilitary training and discipline, and these also are militias within the historic as well as current meaning of the term.
It is a nice historic question whether it is or was part of the purpose of the 2nd Amendment to enable the formation of such militias.
But that is neither here nor there.
The reason why some provision was made part of the constitution is different from the provision itself.
Why it is, is different from what it is.
Here is the text.
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.
As to the what, I think the Second Amendment conjoins a dubious claim of the necessity of militias before the comma with a guarantee of the individual right to keep and bear arms after the comma.
Or perhaps it conjoins a tacitly but genuinely conditional guarantee of that right with the assertion of its condition.
In the first case we have the individual right to keep and bear arms claimed by the gun rights folks, though conjoined with an assertion that is most likely false, of which it is all the same independent.
In the second case the amendment is altogether without legal significance unless the condition is actually true, as the guarantee of the individual right at issue is conditional upon the necessity of militia and not merely upon the assertion of that necessity.
But in neither case does the thing guarantee to the states a right to maintain militias (or National Guards), nor to individuals the right to form private militias, nor to individuals the right to keep and bear arms only if they are members of a militia.
I think the first reading the more plausible, so the gun rights folks are likely correct that it protects an unconditional individual right to keep and bear arms.
But I believe the incorporation doctrine is a falsehood based on gibberish, and so the guarantee of the amendment is only good against the federal government, anyway, restricting the states and lesser jurisdictions not at all.
Too, it is notable that the constitution has not a thing to say about which arms, which sorts of arms, the people have a right to keep and bear.
But, based on the purpose of the amendment discussed above, it is clear enough that, as meant at the time of its adoption, the text of the 2nd Amendment should be taken to refer to weapons one might carry during service in a militia.
Those would be light infantry weapons - firearms, bows, explosive devices, or bladed weapons that one might easily carry about.
And so also, as the enthusiasts claim, the amendment does protect an individual right to personally and privately own the latest fully automatic weapons designed for military use (so-called "assault rifles"), as well as other modern light infantry weapons that are readily carried about.
But it does not protect an individual right to ownership of tanks or suitcase nukes, as others sometimes claim; the former are not infantry weapons and the latter will never be that, though at some time or other if the world isn't lucky a person carrying such a device may well be a member of a militia.
As for me, I'd prefer the amendment was repealed altogether, leaving the federal, state, and local governments to do as seems best in their jurisdictions to them.
Pending that, I am pleased to see judges and politicians all but unanimous in telling lies about the amendment in order to legitimate very sensible restrictions that are in fact in flagrant conflict with it.
No comments:
Post a Comment