As this is being written, on the day the Supreme Court handed down its ballyhooed “gun rights” decision in the case D.C. vs. Heller, sundry outraged mayors are fuming because the U.S. Supreme Court has, “for the first time,” discovered in the Constitution an individual right to bear arms, placing in danger all their precious (though thoroughly counterproductive) local victim disarmament edicts.
The City of Chicago, for instance, currently governed by yet another Richard Daley (how many does this one make?) had filed an amicus brief arguing that since the Second Amendment restricts only FEDERAL gun-banning, it shouldn’t apply to Cook County.
That argument would have made some sense before enactment of the Fourteenth Amendment in 1867 (apparently it still takes some time for news to reach Chicago), specifically barring the states and (by logical extension) their subdivisions from “abridging the privileges or immunities of citizens of the United States.”
This was done specifically to stop recalcitrant racist jurisdictions in the years immediately following the Civil War from attempting to limit the rights of black citizens to register and go to the polls. It was easier to intimidate them, see, if they could be arrested for bearing arms (especially CONCEALED firearms, the carry method curiously favored by black folk who would be lynched if seen carrying a gun openly.)
So the Southern states responded to post-Civil War Reconstruction by enacting “black codes,” specifically aimed at disarming racial minorities. This was banned in 1867, mayor.
In fact, Thursday’s narrow 5-4 ruling, in which the high court is widely reported to have “tossed out” the Washington, D.C. handgun ban, “discovered” no new right, at all.
(I say the court is “said to have” tossed out the handgun ban. The court ruled the District went too far in insisting handguns had to be kept broken down, unloaded and inoperable. In fact, the court upheld comprehensive licensing and registration schemes, and Justice Scalia included a highly troubling statement that “weapons that are most useful in military service — M-16 rifles and the like Ð may be banned” — a catalog of “infringements” so extensive it would probably foment a revolution if applied to freedom of speech, of the press, or of religion.)
The complete version of the above citation from justice Scalia’s ruling is: “It may be objected that if weapons that are most useful in military service Ð M-16 rifles and the like Ð may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”
What’s that “but” doing in there? And what on earth is a “lawful weapon”? Which weapons were “unlawful” in 1776 or 1789? None that I know of.
Arguing that the new Constitution couldn’t possibly leave the commoners less well armed than the army of the central government, Tench Coxe, friend of Madison and prominent federalist, asked in the Pennsylvania Gazette of Feb. 20, 1788, “Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.”
Justice Scalia and the slim court majority now argue the phrase “every other terrible instrument of the soldier” doesn’t include M-16s? This is like saying the freedom of the press protects only hand-powered sheet-fed presses like Ben Franklin used, not today’s high-speed electric jobs.
In fact, let us compare the enforcement of the Second Amendment — even after Thursday’s half-hearted ruling — to the enforcement of other provisions of the Bill of Rights.
The Sixth Amendment says that if the government charges me with a crime, I have a right to “the assistance of counsel.” In 1966, the Republic being 177 years old, the Supreme Court suddenly “discovered” (in Miranda vs. Arizona) that this right had a new meaning, previously unrecognized. It turns out this right means that when a police officer arrests you, he has to TELL you you have a right to an attorney, and then say “If you do not have an attorney, one will be appointed for you.” Then, if you plead poverty, the court actually WILL appoint you a “public defender,” and the taxpayers will pay for his or her services.
I’m not saying that’s an entirely bad thing. I doubt most Americans today would want to entirely disband the office of the public defender. But Imagine if the Supreme Court now defended my Second Amendment rights with equal vigor.
On June 26, the court ruled that when the Constitution says my right to keep and bear arms “shall not be infringed,” that means it’s still OK to arrest me if I try to enter a school or or other government building while carrying my Taurus .44.
But if they applied the 1966 “Miranda” standard to the Second Amendment, they would instead have ruled that, when I enter a federal courthouse or other government building, the receptionist or security guard who greets me would be required to say, “Ah, sir, you don’t seem to be wearing a sidearm. I’m required to advise you that you have a right to keep and bear arms. If you don’t currently have a gun, one will be provided you at government expense. Is there anything in our display rack here that suits your tastes? Can I loan you this Kimber .45, perhaps, or this Para-Ordnance .40 with a full-sized magazine?”
“Oh, that’s idiotic!” some younger products of the youth homogeneity camps will fume. “If we allowed people to carry guns into schools and courthouses, mayhem and mass murder would ensue.”
Really? Find an American who’s over, say, 60 years old. Ask whether, as a young person, he or she remembers seeing any “no guns allowed” signs on public buildings. There were virtually none. The American people were generally trusted to carry arms and still not shoot the judge if a decision went against us.
If you got on an airplane with a hunting rifle before 1968, the stewardess would help you find room for it in the overhead cargo bin. In the afternoons when I was in school in Massachusetts from 1962 to 1965, we under-16 boys would go down to the gym in the afternoons, walk downstairs to the shooting range in the basement, and practice with our .22-caliber rifles. In most of America, a boy arriving at school in the morning would commonly leave his rifle in the principal’s office so he’d have it for the shooting match that afternoon.
We have indeed seen “mayhem and mass murder ensue” in America. But not during the three centuries when walking around with a gun was so common as to go largely unremarked. The rise of those sociopathologies can be correlated quite closely with the gun bans enacted starting in 1934 but predominantly since 1968, along with the conversion of our common schools into a massive “jobs” program of fenced-off “secure” youth internment camps, where any lad who shows any spirit of independence or other evidence of “testosterone poisoning” is promptly labeled a “behavior problem” and doped up on mind-altering drugs like Ritalin and Luvox.
Most of our “schoolyard mass shooters” had been lately doped up on such nostrums. You can look it up.
“Gun bans” don’t and can’t work, in anything remotely resembling a free country. They’re also unconstitutional.
Though how something can be “sort of unconstitutional, in some places some of the time,” escapes me, Justice Scalia. How does “shall not be infringed” translate into “but of course you can ban possession of military-style M-16s”” How does it translate into “but of course you can ban firearms in government buildings”? Will the POLICE in the government buildings be disarmed? I don’t think so. Where did they get the right to go armed there, if “the people” never had any such right to delegate to them in the first place?
And how does that fulfill Mr. Madison’s promise in The Federalist No. 46 that the new central government would never dare infringe any of our rights, since the regular army would find itself opposed by “a militia amounting to nearly half a million citizens with arms in their hands”?
The Army or Marine Corps, sent in to establish martial law, armed with fully-automatic combat rifles and crew-served weapons, would stand in awe of me and my neighbors pulling out our little 9mm Makarovs?
On June 26, the court took a hesitant half step in the right direction. Whether it will end up doing more good than harm will depend on clarifying cases yet to come.
With any luck, we will dodge the danger of having gun-grabber Barack Obama — who at least cannot be said to have forgotten the struggles of his black American ancestors against racist “gun control” in this country in centuries past, since he has no such ancestors — appoint our next three or four Supreme Court justices, who would then doubtless join to form a new majority with Justice Stephen Breyer, who wrote in his June 26 Heller dissent that “In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”
Barring that, perhaps we can now continue hesitantly back up the path toward the freedom land.
As John McCain said, on June 26:
“Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today’s ruling … makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right. …
“This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.”