Militia in the Constitution?

These guys in Oregon insist that they are a militia and thus entitled to their guns because you have to read the 2nd Amendment very strictly.faces-of-the-american-revolution-militia-soldiers---randy-steele

OK, fine. Then let’s read Article II just as strictly: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.”

There you go. Simple solution: Obama orders them to surrender. When they don’t, you arrest them and court martial them.

Problem solved!

Constitutional Fundamentalists: Either liars or just damned stupid

I’m so sick of fundamentalist politicians and internet trolls. And not just the religious ones — the Constitutional ones.

These people view the US Constitution as if it were written on stone, never changing, and can never be questioned.

Like religious fundamentalists, they believe there is only one interpretation of their holy book and — here’s the amazing part —  that interpretation is always exactly in line with their own personal views!constitution_quill_pen

Most of us who study the Constitution for a living are aware that the Founding Fathers, though great men, were not gods. We know that the Constitution was written by politicians, who made compromises and wrote the thing to be deliberately vague in parts because that was the only way they could get the damn thing passed. That’s how politics works.

The most obvious example may be “The Virginia Compromise.” (Look, it even has “compromise” in its name.) The smaller states wanted each state to have an equal vote so that they wouldn’t be ignored. The larger states wanted it to be based on population which would obviously benefit them. In the end, we got both — a Senate where each state gets the same representation no matter how small, and a House where the states with more people get more representation.

Then there are the first ten amendments themselves (the “Bill of Rights”). Many states refused to ratify the Constitution without these protections, and it’s a good thing they demanded them.

But the clearest example of compromise in the Constitution has to do with slavery. Most of the northern states had already abolished it and wanted the entire country to do the same, but the southern states refused. The south was worried that as soon as this Constitution was passed, the northern states would outlaw slavery completely. Without some provisions to prevent this, the south refused to agree to the Constitution. Rather than split the country within the first ten years of its existence, a series of compromises were worked out. (Sadly, postponing this only led to the bloodiest war in American history seventy years later.)

First, there’s Article I section 9 which specifically prohibited Congress from passing any law outlawing the importing of slaves before 1808 (twenty years from the Constitution’s signing). Why 1808? Was there something magical about that year? No, that was just the number that compromise produced. (And as soon as 1808 came about, Congress did exactly what the south was worried about and banished the importation of any more slaves.)

Second, there’s the ridiculous 3/5ths clause. The south demanded that when determining how many representatives they would get in the House, that slaves should be counted as “people” even when they were property in every other respect under the law. The north rightly pointed out how stupid this was, but the south insisted and there was another compromise made. We ended up with a provision that held that 3/5ths of every slave would count. No mention as to which 3/5th of the slave counted, though, but apparently it didn’t include the head since the views of the slaves mattered not.

Third, there’s the 2nd Amendment, which allowed the southern states to keep their state “militias” which were basically armed gangs whose only job it was to intimidate slaves and capture ones who escaped.

Within a few years of its passage, there were cases before the Supreme Court to determine the Constitution’s meaning and its application. The Founding Fathers themselves were still around and they could not agree! To think that there is some magical interpretation we can know today, hundreds of years later, is ridiculous.

So anyone who claims to “know” the intent of the Founding Fathers — as if they all agreed completely — is either lying to you or just too damned stupid to realize they’re spouting bullshit.

Masking Treason as Patriotism

Last Monday, a gun-owning friend of mine posted a bunch of internet memes on his Facebook page, culminating with “There are two types of people:  gun owners and victims.”  Someone please remind me what last Monday’s holiday was for — was it gun owner James Earl Ray or victim Martin Luther King, Jr.?  I forget.

There are lots of things our government does that I disagree with.  gun-owner Throughout our history, our government has taken away rights of individuals, and we have been able to make great progress without actually taking up arms against the government.  

For instance, the civil rights movement led by King helped to convince Americans that the law had to be changed, and they accomplished this with non-violent protests.  Other advances were made through our political system (by electing politicians who promoted change) or through our legal system (with lawsuits to force the government to extend rights).  In a truly democratic form of government, this is how you progress.

But some gun owners believe that if you don’t get your way in America, it is perfectly fine to advocate violence.  They read the 2nd amendment in a way no court has done, and in a way counter to the majority of Americans, but insist, like religious fundamentalists, that they and they alone know exactly what the Constitution means.  “We must obey the Constitution!” they scream.  “We are true patriots, obeying the will of the Founders!  And we will use violence against the government if you try to stop us!”

Yes, because the Constitution must be obeyed.  Oh, except that part about treason.  That doesn’t count.


(EDIT:  It is pure coincidence that as I am writing this, I hear on the news that there is another shooter killing people in a Mall.  I could have re-rerun my “Gun Control Shuffle” post, but I’m getting tired of having to run that every few weeks.)


I’m anti-car

I admit it, I’m anti-car.

I think it’s a good idea that you must have a license to drive which you cannot get until you can prove you can handle a vehicle safely. bond I prefer not allowing children to drive.  People who have a record of unsafe driving should be prohibited from getting behind a wheel.

I like having all vehicles registered, and checked periodically to make sure there are no defects.  I think it’s great that we are required to have insurance so that if anyone is hurt as a result of negligent use of the car, there is coverage for medical expenses and damage.

I even think it’s a good idea that certain large vehicles which are even more dangerous be highly regulated, with special licenses and requirements above and beyond the minor vehicles.

Clearly, all of these regulations prove that I am, at the root, anti-car.  No doubt I will next want them all confiscated by the government.

OK, the metaphor has gone on long enough, because you all know that I’m really talking about guns.  Whenever I mention these kinds of reasonable, rational regulations, I get friends telling me I am anti-gun.  Ironically, these friends would have no problem getting a gun with these regulations.

“But it’s different with cars,” they say.  “Cars aren’t a guaranteed right under the Constitution.  You can’t have regulations limiting guns!”  After all, it’s not like the 2nd Amendment uses the words “well regulated” or anything.  Oh, wait.  Yes it does.  My bad.  (All rights have exceptions.)

“But then only criminals will have guns!”  Of course.  No law will prohibit criminals from getting guns any more than automobile laws have kept unlicensed drivers from getting behind a wheel.  There are still unregistered, uninsured, and uninspected cars out there.

But imagine how many more there would be if there weren’t any laws. How safe would you feel knowing that any car you see could be uninsured, with bad brakes, and driven by someone with ten DUI convictions? Aren’t you glad there are laws to prohibit that? Laws that will punish those who do not obey them?

It just baffles me that well-meaning people who can be quite reasonable in other areas go crazy when anyone mentions even the most minor regulations of their guns.  It’s a kind of fetish I just never understood.  There are people who really love their cars too but don’t think that having to pay to have a license plate means that the government has become a fascist dictatorship determined to take their vehicles away from them — yet otherwise intelligent people will use that exact same argument when talking about guns.

I don’t think I’ll ever understand it.

Strict Scrutiny (part four): Exceptions to the 2nd amendment

Constitutional fundamentalists, like religious fundamentalists, yell the loudest when their pet issue is involved.  Suddenly, all compromise and nuances go out the door, because they believe there is One Right Answer and they, and they alone, are wise enough to see what that answer is.

These people will gladly agree to gray areas in other parts of their particular Document That Cannot Be Interpreted (whether their holy book or the Constitution) but don’t you dare misinterpret the intent of (insert one:  God / Founding Fathers) when it comes to (insert one:  abortion / gun control). gun

Many people who read the Constitution so strictly as to never allow any gun control will agree that the 1st amendment, despite being very clearly written, has many exceptions that seem to negate the words “Congress shall make no law abridging Freedom of Speech”.  “It’s all how you interpret ‘abridging,’ they will say.

So let’s look now to the poorly-written 2nd amendment:

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.

That’s the version from the National Archives that just about everyone uses.  But then here’s the version from Thomas Jefferson’s writings — the official version passed by the Senate:

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.

Less commas.  But that can make a difference, especially if you are trying to figure out whether the amendment applies to “militia” or “people.”

I am not going to spend this entire post on every nuance of the 2nd amendment because that would take a book.  I advise you to read the first three parts of this current series.  The point of this series is to show that the Constitution is not written in stone, is a result of political compromises, and all parts need to be interpreted.

The 2nd is no exception. It’s not like the rest of the Constitution was written after debates and subject to deals whereas the 2nd was agreed upon by everyone off the bat.

There’s plenty of historical documentation to establish that the 2nd was another one of those Constitutional bits, like the 3/5th clause and other slavery provisions, added because the southern states demanded it. An original version did not use the words “free state” and those words are there for a reason — because the states wanted to make sure they could keep their “militia” which were used to round up escaped slaves. Seriously, there are writings from Patrick Henry and George Mason worried that the northern states, unable to stop slavery, would instead take the guns away from the people keeping the slaves in their place. Whether this was the main reason or not, it still supports my point that the amendment was a compromise.

If you want to be a purist, like many Constitutional fundamentalists claim to be, then I can argue that the Founding Fathers meant only for you to have the right to own guns that could only hold one bullet at a time, took a minute to load, and blew up in your face much of the time. “Of course they didn’t mean that!” they respond. “Ah!” I reply. “So you had to interpret it to include modern firearms.”

The 2nd amendment, just like all of the Constitution, doesn’t mean the same thing it did when it was written. For most of our history, the Supreme Court held that it applied to militia. It was not until the court decided Heller a few years ago that it became an individual right, which countered past history and was strongly objected to by four members of the Supreme Court. (That’s right — one justice made all the difference as to what the Constitution means.) Even still, Heller allowed for regulations of firearms. (That’s the part they forget to tell you most of the time.)

There is nothing magical about anything in the Constitution that leaves it free from interpretation. When I debate the 2nd amendment with Constitutional fundamentalists who believe that the 2nd is written in such a way as to prohibit any gun control whatsoever, the conversation usually goes like this:

“So you don’t think we should keep guns out of the hands of terrorists, criminals, the insane, and children?”

“No, that’s different.”

“Ah! So you agree with me that the amendment is not absolute and there are exceptions! Good. We only disagree on what those exceptions should be.”

I’m not going to spend this post on what I think they should be. My only point is that the amendment is not absolute and is subject to interpretation — just like every other part of the Constitution.

Do the Words “Well Regulated” Mean Anything?

See, here’s the problem.

The words “gun control” make the radical gun owners’ heads explode. Despite the fact that the vast majority of gun owners agree with things like background checks and licensing and other controls to help keep guns out of the hands of criminals and the insane, the radicals see the mere thought of even the slightest bit of regulation as a violation of the Constitution greater than any other.


And this is despite the fact that the Constitutional amendment in question is the only one that uses the words “well regulated.”

Go figure.

The First Amendment clearly says that “Congress shall make no law” concerning freedom of speech and the press and religion and so on. Yet, there are all sorts of regulations on our speech which do not violate the Constitution at all. There are restrictions on the time, place, and manner of the speech (Can’t yell “fire” in a crowded theater); there are restrictions on speech that can cause a “clear and present danger” (you can’t incite a riot and then claim as a defense that you were simply exercising your First Amendment rights); there are restrictions on obscenity, military secrets, and laws against libel and slander.

And that amendment doesn’t even carry the words “well regulated.”

So what does that mean in the 2nd amendment? Why would the founders have added those words if they were meaningless?

Some will point out that it says “well regulated militia” and therefore the law only applies to the military. Well, by that definition, only the militia can have guns.

And even so, I wouldn’t object if non-military persons had to follow the same rules as our military when it comes to guns. No one joins the army and is handed a machine gun on the first day. No, first you have to be cleared to even be in the military in the first place to make sure you’re not a felon or insane. Then there is training to go through; there are safety courses; and there are many people overseeing you at first. You know — the same kinds of restrictions many of us feel are reasonable for anyone wanting to own a gun.

I have friends who are gun owners. Not one of them would be prohibited from owning their guns with these restrictions. Yet a few of them seem to think that any restriction is equivalent to “the government taking their guns away.” No, it’s more like the government taking cars away from people who don’t know how to drive, have no license, and/or are criminals or insane.

Sounds nice and “well regulated” to me. No Constitutional problems there. (And, once more, although the radical gun owners always point out the recent Supreme Court decision that says that citizens have the right to own guns, they ignore the parts of the decision that allow for the exact kinds of regulations I’m talking about here.)