Thursday, July 2, 2015

The "Loaded" Amendment

In this second installment of my ramblings on the Bill of Rights, we get into one whose debate is most based on the fact that the rationale for its existence is put right there in the text, and has led to endless discussion as to what it "really" means.

We refer, of course, to the Second Amendment, which reads:

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.

Of course, there is always that "well-regulated militia" line that trips everyone up, for two reasons -- first, we have a 21st Century idea of what a "militia" actually is, which we try too often to apply to 18th-Century text, and second, because it is really not that important -- rationale or no, the rest of the Amendment is where the "shall" lays, and where the right is defined.

I say it is not important, because the Framers didn't just dream that one up like "Well, George, we need to be able to raise a militia once in a while; perhaps we should put something in about letting the citizens have guns."  In fact, the right to keep and bear arms derives from a much, much earlier concept in British common law, which was the basis for the words.  Importantly, that concept is well-described and documented there as relating to a natural right to self-preservation and armed resistance, when laws alone do not help.

In the context of this piece, the rationale is not relevant either, as we are discussing the implication.  We have a right to bear arms; the Constitution has enshrined that essential right, and we need to consider the consequences, good and bad, of existence of that right in a free society.

As I wrote recently, I am one of those folks who has shot competitively all his life.  I've never hunted, or fired a weapon at anything other than an inanimate target.  I did not serve in the military (though I went 1-A in the draft while in college, they never seemed to want me).  So I don't even think of firearms necessarily in a "weapon" sense as much as the tool of a competitive sport.

When, however, we allow an uninfringed right to possess arms, we have to recognize that the common-law dictate grants an innate, understood expectation that a citizen of the USA can defend himself or herself, armed, and that the government will not interpose with "infringing" actions that prevent the law-abiding citizen from doing so.

That interposing includes, as I noted in the earlier piece, failing to issue (or deny) a firearm-purchase permit in a reasonable time, "reasonable" meant to include the local authorities complying with their own laws.

So the consequences are many, but the principal ones actually are that we have granted our citizenry the right, and the obligation, to defend ourselves properly with deadly force.  We talk of the obligations of a free people, but those of an armed free people are beyond that.

Most particularly, an armed free people must find, somewhere, a moral code that drives them to be properly able to defend themselves and, at the same time, apply the knowledge of right and wrong to an understanding of deadly force.  Seems like a lot to ask.  But that's the price of freeing a people and granting them their due right to stand for their property and their family.

How do we feel about the consequences when people lacking that moral code arm themselves as they have in, well, the South Side in Chicago, and determine that they are at some kind of war?  Well, those are indeed awful consequences.  But there's no real conflict between disarming criminals, or preventing them from bearing arms, and the Second Amendment.  It's the disarming of the law-abiding that is the problem -- and the fear.

Because at the same time the citizen must take the right and properly bear arms when arms are borne, the government which granted the right must manage it with the real balance between the rights and needs of its citizens.  With fifty States, a District, a handful of territories and a commonwealth here and there, that's a lot of governments to get it (the administration of firearms transactions and possession rules) right.  But the essential right in the Second Amendment doesn't vary -- whatever the waiting periods may be, or the ID requirements, or the proof of residence, in no way can the implementation "infringe" on the right for civilized citizens to bear arms.

The British, in putting that principle in common law before there was a dream of a USA, understood the role of personal defense.  After all, what do dictators do as soon as they gain sufficient power?  They confiscate the firearms of their people.  Hitler did it; there would appear to be no better evidence that opposition to the armed citizen is a sign of corruption than that it being a tactic of that fellow.

America glorifies the individual.  We are allowed to possess property, to create businesses, to deal at home and abroad, to travel freely, to worship as we please.  It is absolutely consistent that we are individually free to defend our property, our business and our person.  The Framers not only knew that, but they clearly felt it so fundamental that it was incorporated before almost every other right in the first ten.  Think about that, where this Amendment sits in he Bill of Rights.  It was no accident.

The right to keep and bear arms is awesome in the true sense of the word.  I recall the very first thing my dad taught me when I started to shoot around age twelve -- "A gun is always loaded" -- in other words, treat arms with the respect due a loaded weapon and assume it to be so.

The Second Amendment, in its own way, is also "loaded" -- we must treat it with respect and deference, and remember that both the government that created it and the citizenry to which its right is granted are obligated to act properly toward it.  It was given to us as protection for the civil rights of the citizens of a free nation.

When we "cling to our guns", as our current president so inartfully said, we are clinging to our position as free Americans.

Do not mess with it.

  Copyright 2015 by Robert Sutton
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