Saturday, February 25, 2017

The Second Amendment, a Short Defense

“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.”

Folks who argue about the Second Amendment can generally be divided into four camps.  The primary divide is that some folks think  "A well regulated Militia..." is a foundational clause.  Others contend that "A well regulated Militia..." is a supporting clause.

As a pro-Second Amendment blogger, I only need to address the box which starts….”Militias are obsolete…” because that is the only position which attempts to invalidate my right to bear arms.  That position, “Militias are obsolete… foundational argument”  contends that the Second Amendment is about “Militias” and not about firearms.

There are two assumptions about this position that are worth examining:

Militias are obsolete:
At this point it is useful to look at the Fifth Amendment to get some hints on what the authors of the Bill of Rights had in mind when using the word “Militia”.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Take a look at the underlined portion:

…except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger

The authors of the Bill of Rights gave us a list of “equivalences” or “same-as”.  In the Second Amendment they use the generic term “security”, in the Fifth Amendment the explicitly say land or naval forces, or in the Militia, when in actual service in time of War or public danger

So even if those who wish to ban guns contend Second Amendment uses “Militias” as a foundational argument, the Fifth Amendment equates the need for “Militias” with the need to address “public danger”.

And who, on August 8, 2014 would have picked an anonymous suburb of St. Louis, Missouri as the next flashpoint for urban violence?  My guess it that exactly ZERO in 317,000,000 would have picked Ferguson, Missouri as the next flashpoint.

The authors of the Fifth (and Second) Amendments were talking exactly about flash-mobs in shopping mall parking lots when they wrote “public danger”.

The second assumption is that the Second Amendment is about Militias, not arms:
If the Second Amendment is about Militias, then I should be able to organize a militia and legally buy the tools of the trade.  I should be able to buy, or manufacture for general sale, belt-fed, crew served weapons.  I should be able to buy mortars. 

Clearly I cannot even though I can own a firearm nearly any place in the country. That is proof of a vast body of precedence that the courts (and everybody else) realizes that the Second Amendment is NOT about Militias, it is about the right to bear arms.

The perfectability of humans
One of the fundamental differences between progressives and conservatives is that progressives believe that humans are "fixable" and that the fixes are permanent and will never unwind.  You can picture that as a rock dragged across a beach.  It tends to stay where it was left.

Conservatives tend to believe that any improvements in the human condition are reversible and that inattention results in the a return to the base condition.  Furthermore, conservatives believe that maintaining the improved human condition consumes energy and that ever more energy is required as the social construct becomes larger and more complex the structure.  As some point, an equilibrium is reached where all resources are consumed in maintenance and small pertubations result in the entire structure collapsing.

The conservative might challenge the progressive:  "Suppose I get a tattoo and my child and grandchild get identical tattoos...How many generations must get tattoos before babies are born with them?"  The answer, of course, is "never".  Then the conservative is likely to ask, "Then why do you assume that your social constructs will become maintenance free, that people will be born "fixed"?"

1 comment:

  1. That last paragraph IS an excellent approach to take! :-)


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