Gun Control and the Constitution

Michael Z. Williamson from his website

Over on his blog, The Sacred Cow Slaughterhouse, Michael wrote an article about gun control, one of probably ten thousand that have been written since the slaughter at Sandy Hook. Michael is getting the mention because I think he’s a damned good writer, and I can kill two birds with one stone.

Tell you to buy his books (link here) and short stories (Michael is in the Sha’Daa and Heroes in Hell anthology series).

Now that I’ve done my advertising for the day, let’s take a look at what the United States Constitution actually says, and what an activist court has done to it.

Have you read the Constitution?

I am constantly amazed by how many Americans haven’t read it, but think they know what it says. The first thing we are going to do is read the Constitution. Do you see any mention of guns on this page? Not one, at least not in the main body.

Ah, but everyone is screaming about the Second Amendment. True, that is what they are screaming about.

The Amendments are a curious thing. According to the Archives of the United States website, the States requested a “bill of rights” that would spell out the immunities of individual citizens.

Twelve Amendments were proposed to the States as the Bill of Rights, but only ten were ratified. Right from the start the States were limiting the power of the Constitution, by refusing to ratify amendments. The first ten Amendments that were ratified are called the Bill of Rights, and have the following Preamble:

The Preamble to The Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

You’ll notice something interesting. No mention of guns, anywhere. Again.

When we go to the Second Amendment that the States ratified, the one that everyone is talking about it says:

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.

No mention of guns. It does mention ‘Arms’, a definition from Dictionary.com:

arm [ahrm]

noun

1. Usually, arms. weapons, especially firearms.
Origin: 
1200–50  for v.; 1300–50  for noun; (v.) Middle English armen  < Anglo-French, Old French armer  < Latin armāre  to arm, verbal derivative of arma  (plural) tools, weapons (not akin to arm ); (noun) Middle English armes  (plural) ≪ Latin arma,  as above

I ignored the definitions that didn’t match the meaning. Note the bolded sections. Not guns specifically, but weapons in general.

The wording of the Constitution explicitly says that the right to bear arms is in relation to their use for a “well armed militia.” No mention of hunting. No mention of protection. For militia use only. Of course militias in the day of the drafting of the Constitution were very much ad hoc affairs, without any of the registration and lists we’d use today.

In 2008 an activist Supreme Court ruled in District of Columbia v. Heller554 U.S. 570, that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home and within federal enclaves.

The stretch of the Second Amendment definition is probably not Constitutional in its own right, as it interferes with the rights that the Constitution grants Congress in Section One:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

since the District of Columbia is ruled by Congress in effect. It is also unconstitutional because it limits ‘Arms’ specifically to firearms. The Constitution makes no provision to for differentiation between firearms and any other type of weapon, whether sword, pike, firearm, or nuclear bomb.

The last of which is more than a little disturbing.

Amending the Constitution

Part of the screaming has been people being silly, like the petition to Try Senator Dianne Feinstein in a Federal Court For Treason To The Constitution. Then there’s the petition To recognize the second amendment in accordance with the founding fathers original intentions, which appears to require access to a reliable Ouija Board, since not enough documents survive from the Convention for us to be totally certain what they intended. Then there’s the petition asking the administration to Pledge not to use an Executive Order to restrict the 2nd Amendment rights of law abiding Citizens. Of course since no one, including the Supreme Court can agree on what those rights are that could be difficult. There’s the very similar petition asking the administration to Not INFRINGE upon 2nd Amendment rights by instituting any new form of firearms ban, legislation, or regulation, the Repeal Unconstitutional Gun Laws, and the Disregard and Dismiss Senator Feinstein’s proposed Gun Control Bill.

How do you define what infringes? Firearms aren’t mentioned in the Constitution. The most sensible one is the petition To send Piers Morgan back to Great Britain. Really, who wants him?

What these people don’t seem to understand is that the Constitution was designed to be amended, and that an amendment can remove an existing amendment, or EVEN CHANGE THE TEXT OF THE MAIN BODY. Seriously. Amendment XIII overrode Article IV Section II of the main body which said:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

And thereby slavery was made illegal.

So a discussion about the Constitution is a good thing, and to be encouraged.

Does the United States still need the Second Amendment? If it does, how should it be changed, if at all, for the 21st Century?

These are important questions, because the Constitution was written in a period when the Improvised Explosive Device that Guido Fawkes attempted to blow up the British Houses of Parliament was still relatively current technology. The Framers of the Constitution could never have foreseen atomic weaponry, but a straight reading of the Constitution says you should be able to keep it if you want. And can afford it.

Certain types of weaponry aren’t allowed for use by Nation States. But the United States Constitution effectively says you should be able to bear them. Even if you aren’t a citizen. You just have to be in a territory where United States law is enforced.

I Like Weapons

Me and my Sword
Me and my Sword

Yes, that’s a sword. I like weapons, and I’ve always owned a variety of them. They never get used now, except for portraits. I used to hunt a bit before my body gave up, but that was over twenty years ago.

The sword has seen blood. My son, the chef (who has an enormous collection of knives), just had to see how sharp it was. Needless to say he needed stitches. It is impossible to tell a twenty-five year old to be careful. He’ll ignore his old man, every time!

So I’m not against weapons per se. What bothers me is people who don’t even know their own laws and history, making silly statements.

I do believe that weapons need to be controlled to some extent. Some weapons are just to dangerous to allow into non-state hands. Imagine if Adam Lanza had access to VX gas…

And if you believe that your government can’t be trusted, unless you can hold it off with your personal weaponry, do us all a favor, and move somewhere where you are more comfortable.

Regards

Wayne Borean

Thursday January 10, 2013

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2 thoughts on “Gun Control and the Constitution

  1. Unfortunately, your knowledge of this particular history is lacking. The Court was not “activist” (meaning someone didn’t like their decision, which is always). SCOTUS has ALWAYS said 2A was individual, in dicta, and even in the decision of Miller case.

    Warships and artillery were privately owned at the time, which is why letters of marque are mentioned in the Constitution.

    The BoR ENUMERATES specific rights. It does not create them, and it says so. So even without 2A, there would be a right to keep and bear arms, because nowhere does the Constitution grant the government the authority to restrict any rights.

    It is correct that 2A specifies a militia context, and the militia is defined in Title 10 USC, Ch 13, Sec 311. The National Defense Act of 1916 created the Civilian Marksmanship Program, which still exists, to provide subsidized battle rifles and ammunition to Americans.

    9th and 10th Amendments and the principle of Common Law would protect self defense and hunting.

    And if you actually read the letters of the time, the purpose of the 2A was both national defense, and to provide for revolution against a despotism. It is clearly stated that the intent was for the people to be able to overthrow a government.

    So yes, the unconstitutional restrictions on machine guns and rocket launchers need to go away, and I do in fact have a right to own a nuke.

    However, I don’t see private proliferation of nukes becoming a problem.

    And with almost half of households owning firearms, I don’t see any amendment to repeal going anywhere.

    1. Unfortunately, your knowledge of this particular history is lacking. The Court was not “activist” (meaning someone didn’t like their decision, which is always). SCOTUS has ALWAYS said 2A was individual, in dicta, and even in the decision of Miller case.

      That is why the court is activist. The Constitution does not mention individuals anywhere in the Second Amendment. That court interpreted the Amendment to apply to individuals.

      Now there are solid reasons for the court’s ruling. Militias did tend to be ad-hoc organizations in those days. But times have changed. Just like Americans no longer keep slaves, possibly Americans should only hold guns if they are members of organized militias, and are trained in the use of said guns.

      Most Canadian gun owners I know are aghast at the shit you put up with. I was in the gun store the other day, looking for a shotgun for my daughter. If you’d have heard the comments about ‘incompetent Americans’ you would have turned beet red.

      Warships and artillery were privately owned at the time, which is why letters of marque are mentioned in the Constitution.

      So under that argument nuclear weapons are OK for private ownership too? And War Gasses? How about Weaponized Anthrax and Botulism?

      The BoR ENUMERATES specific rights. It does not create them, and it says so. So even without 2A, there would be a right to keep and bear arms, because nowhere does the Constitution grant the government the authority to restrict any rights.

      It is correct that 2A specifies a militia context, and the militia is defined in Title 10 USC, Ch 13, Sec 311. The National Defense Act of 1916 created the Civilian Marksmanship Program, which still exists, to provide subsidized battle rifles and ammunition to Americans.

      9th and 10th Amendments and the principle of Common Law would protect self defense and hunting.

      Agreed. Anything that isn’t denied is allowed, which is one reason that slavery in various forms persisted until the Second World War.

      The problem is that sometimes Government has to be activist to protect the rights of the minority. Canadian Governments have been good at that. That’s why we’ve had Same Sex Marriage for ten years.

      American Governments? In my personal opinion, you’d be better off with a bunch of monkeys running the country.

      And if you actually read the letters of the time, the purpose of the 2A was both national defense, and to provide for revolution against a despotism. It is clearly stated that the intent was for the people to be able to overthrow a government.

      Exactly how you expect to be able to do this against your own military, considering their level of training, and the equipment they have (bought on Government credit) is beyond me. Note that I’m not even mentioning your out of control police forces.

      In Canada we could quite easily take out our military and police, even with limitations on magazine size, because there are so few of them. Of course the corollary is that we wouldn’t need to. Our police and military are well educated, and would be on our side, not the Government’s.

      So yes, the unconstitutional restrictions on machine guns and rocket launchers need to go away, and I do in fact have a right to own a nuke.

      However, I don’t see private proliferation of nukes becoming a problem.

      Really? I have the basic knowledge to build a nuke. I also live close to the uranium mines. I think I could build something that would work for under $10,000.00 dollars. Yes, I’d probably die of radiation poisoning doing it that cheap, but I’m pretty sure it could be done.

      I know that I’m sane and wouldn’t do that, but do you know that I’m sane?

      Oh, and if I tried to build a nuke, and fission failed, it would still spew radioactive material over a large radius. Do you really think it is a good idea to put that sort of capability into private hands?

      And with almost half of households owning firearms, I don’t see any amendment to repeal going anywhere.

      With almost 1,300 people dying in firearms related incidents since Sandy Hook, yes, I could see something being passed.

      Let’s face it. Handguns have only one purpose, killing people. Rifles and shotguns are used for hunting, so they have an additional purpose.

      One possibility would be to change the rules so that handguns are only allowed under certain circumstances, like at a registered shooting range, and otherwise have to have trigger locks installed, and the ammunition stored separately.

      That’s one idea. There are plenty of others. To have a gun available to resist your government (a particularly paranoid American notion), you don’t have to have the gun with you 24/7/365.

      Because what it all comes down to is safety. There’s nothing wrong with guns, just like there’s nothing wrong with cars. There is something wrong with letting inexperienced users of either device out in public without training, and without designing in minimal safety features. Oh, and rules for parking.

      Regards

      Wayne

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