We’ve had a banner year of in terms of bizarre homicides. I could say that all homicide is bizarre, but somehow when it involves people who actually know each other it seems more…expected, I suppose. Tragic, shocking, but after a little thought you can see how it happened.
So-called mass shootings are another matter. These are exercises in mindless spleen-venting on the part of people who are then portrayed as mentally ill, “radicalized,” or some variation of misanthropic moron, either an ideologue or a racist or sometimes just someone who has reached the end of the apparently short string by which life was hanging. Collectively we try to make sense of them. For most of us, this is like making bricks without straw: work the material all you want, it’s just mud in the end and nothing that holds up. We just don’t know.
Into this once more we have another round of what has since 1968 been a cyclic iteration of the Gun Control Debate. The question arose on the federal level during Prohibition when gangsters were running around with Thompson machine guns. The police argued that the ownership and use of such weapons outside the military represented a public danger, and limitations were duly enacted, but this was by no means the first instance within the borders of the United States when possession of firearms by private citizens was an issue of law. And to be sure after the Civil War the question had teeth in the face of Reconstruction policies and the subsequent reaction of the defeated South to the condition of free blacks. There is ample in our history to make a case that the idea of restricting access to personal firearms is a matter of oppression. Hence these arguments cannot be quietly put to rest.
One thread is the presumed constitutionality of the matter. The 2nd Amendment is seen by many to guarantee unrestricted access to firearms. Strict Constructionists line up in odd combinations with Survivalists, militant preservationists, and others to claim the Founders meant exactly this. On the other side are those who argue they did not. The fact is, it’s an open question. A good deal of American law was based on English Law and Blackstone’s Commentaries served as an often unacknowledged guide to the writing of local and state ordinances as well as hovering in the back of all the conventionists’ minds while drafting the various state constitutions and the federal constitution. This is one reason so many early state constitutions look so much alike, even in language.
What did Blackstone have to say about possession of arms?
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute . . . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. Blackstone’s Commentaries on the Laws of England, 1765
Right there we see the basis of our legal understanding and the problem with clarification. Under due restrictions. Blackstone—and presumably most if not all the Founders—understood that some regulation was necessary. But by pairing it with a right both Blackstone and the Founders left the issue vague enough to result in precisely the argument we now have. I wrote a piece about my interpretation of what the Founders were thinking here.
Recently I saw this debate once again where the minds of the Founders was being analyzed for both pro and con. I thought to chime in, then held back. I realized suddenly that it simply doesn’t matter what they had in mind.
People will take what they want from the Constitution, just as they do from the Bible, and use it in any way that serves their personal view of how the world ought to be. The vagueness—assumed vagueness—of the 2nd Amendment in this regard allows for the evolution of civil construction to suit a changing situation. The whole Constitution is like that. “What does it mean?” is open to interpretation as long as the issue is recognized as fundamentally important.
(Scalia is simply wrong in his view that the Constitution is not a living document, that it is somehow set in stone and inviolate. If true, that makes it all but worthless.)
The intent of the Founders, however one wishes to construe it in practice, was to guarantee that the armed power of the state came from the express consent of the people. That the “king” was not to hold that power exclusively to the detriment of his subjects, but they would hold it to keep the king in check.
How they held it was and is open to debate and certainly open to reformulation.
In that regard, we should also remember that the United States has traditionally been a state opposed to the idea of standing armies and until WWII, when our current arrangement of maintaining a large federal armed force came into acceptance, we raised armies at need. Consider this from Teddy Roosevelt’s Sixth State of the Union address:
“Our Regular Army is so small that in any great war we should have to trust mainly to volunteers; and in such event these volunteers should already know how to shoot; for if a soldier has the fighting edge, and ability to take care of himself in the open, his efficiency on the line of battle is almost directly Proportionate to excellence in marksmanship. We should establish shooting galleries in all the large public and military schools, should maintain national target ranges in different parts of the country, and should in every way encourage the formation of rifle clubs throughout all parts of the land. The little Republic of Switzerland offers us an excellent example in all matters connected with building up an efficient citizen soldiery.â€
And by the way this was one of the primary functions of the NRA before its lobbying arm expanded to dominate the entire machinery of it.
But the fact is, the situation has changed and we are not talking about abstract political philosophy but about access to military style weapons and head’s full of junk going out and popping off at targets of opportunity because they think their world is ending. Or they want their 15 minutes. Or they didn’t take their meds. Or they overdosed on paranoid social media and Fox News. Or they think—
And we have a multi-billion dollar arms industry that thrives on this stuff, because every time it happens people run out and buy more guns. Naturally they don’t want to see restrictions.
But to argue that restrictions are in some way a violation of the Founders intent is not only a narrow and self-serving view but beside the point, because for the most part the people making that argument wouldn’t change their mind if they could be proved wrong. This is religion for them and like people who insist that Leviticus supports their view of the present world and its ills they will interpret it as they want.
Just as those who find the 2nd Amendment a vestigial piece of antiquated nonsense that perhaps ought to be expunged.
The Founders certainly never intended us to be hamstrung by what they did. The world is a different place—technologically if not politically—and refusing to sit down and try to find a solution to a problem because “the Constitution says” would likely strike them as absurd.
And childish.
I don’t believe any rational person feels the guy who shot up the Planned Parenthood clinic is mentally or morally qualified to have had unrestricted access to weapons. To defend his ability to have them because you think it means you can’t have the same access to the same weapons is a troubling and frankly myopic attitude. We have a real problem in this country with firearms in the hands of people who, with just a little thought, we know shouldn’t have them.
The people who shot up San Bernardino are a different matter. Sane but definitely operating out of a different playbook than the rest of us, one built on self-justifications, paranoia, and perhaps a bit of political vulgarity that made them feel outside the scope of ordinary avenues of communication. The fact is, anyone could do this and we have no way of knowing who might or when or why. It would be nice to think we could predict with certainty, but we can’t, so other solutions should be sought.
However, the debate must be had before we can come to any solution. But stop using the Founders as an excuse. Be honest—this isn’t about them. It’s about us.
