Gun Control vs Gun Rights

         

Pursuing gun control legislation has become a theme of the political Left while the political Right continues to resist. This issue is a good example of the difference between the two sides of the political spectrum in the United States regarding their understanding of the Constitution. 

The pursuit by the Left of yet more gun control than the country already has and does not enforce heightens every time there is a mass shooting. Such shootings are a problem, but the confidence that yet more legislation will solve it is questionable. With most mass shootings, if government agencies had followed existing legislation, the shootings would not have taken place. The failure of government personnel to follow its own rules is a good example of why the political Right has much less confidence than the Left in government. 

I offer some reasons that the political Right is correct in its defense of the Second Amendment and the gun rights of its citizens. Here is another place where there is a sharp divide between the political Left and Right.

First, government cannot solve this problem with better laws or enforcement. The problem in controlling crime is not weapons, but criminals. Many criminals have knives as their weapon of choice. Everyone agrees that the identity of the person who wants a gun is important. Society does not want the wrong people to own guns legally. Felons should not possess guns under any circumstances. Prison, which has weight rooms that undoubtedly help reduce stress, but needs to emphasize education and skill training. Prison needs to cease being a training ground for making the criminally inclined even more so.

         An example of the failure of extreme gun control is when the Council of the District of Columbia enacted the toughest gun control law in the nation in 1976, the city fathers -- according to what they said at the time -- believed they were making our nation's capital a safer place. The measure failed miserably. Since passage, the murder rate in the DC has skyrocketed by more than 200 percent.

         The point is that controlling guns will not solve an issue that relates to the nature of the criminal. Even if one confiscated all guns, the criminally inclined would find other instruments of violence. 

Second, regarding the constitution, citizens of America have the constitutional right to possess guns. This is consistent with Switzerland, where every individual owns a gun as part of the national defense system. The right is a political right, in that it ensures citizens the possession of force against a government that steps over its boundaries. It is a self-defense right, for law abiding citizens who know how to do so need to be able to protect themselves from those who have no intention of abiding by the law and perpetrate violence upon their fellow citizens. 

Some constitutional scholars and judicial rulings argue that the federal government can disregard several restraints that the Bill of Rights puts on government if the worthiness -- as academics or judges assess that -- of government's purposes justifies ignoring those restraints. Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Washington Post that even if the traditional interpretation of the Second Amendment is correct in interpreting it as creating an individual right to gun ownership, the D.C. law mentioned above should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right.

Here is a straightforward way of interpreting what the constitution says.

In 1989, Sanford Levinson of the University of Texas Law School had written in a Yale Law Journal article, "The Embarrassing Second Amendment," that the amendment's language, properly read, is an embarrassment to those who favor whittling away the amendment's protection of the individuals' right to own guns. He noted that if James Madison, the foremost shaper of the Constitution, and his colleagues in the First Congress intended the Second Amendment to protect only the states' rights to maintain militias, the amendment could have simply said: "Congress shall have no power to prohibit state militias." Or as Virginia's George Mason, who opposed ratification of the Constitution because it lacked a Bill of Rights, said, "Who are the militia? They consist now of the whole people." Sen. Kay Bailey Hutchison accurately points out that the Framers never intended that the word "Militia" meant that the right to keep and bear arms was some kind of "collective" right that applied only to a particular group. If that had been their purpose, they would have been satisfied with Article 1, Section 8 of the Constitution that gives Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." To ensure that posterity would recognize firearms possession as an "individual right," the Framers included it as part of the Bill of Rights -- an enumeration of every citizen's personal entitlement: free speech, freedom of religion, and a fair trial. The precise location of those famous words -- "the right of the people to keep and bear Arms" -- provides convincing evidence for the Founders' vision. When Madison and others fashioned the Bill of Rights, they did not merely constitutionalize -- make fundamental -- the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly, and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense -- the public's involvement in public safety. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to "keep and carry arms." 

         The right thing to do on the part of the political Left would be to pursue gun control by changing the Constitution. Seeking to circumvent the Constitution shows the view the political Left has of the Constitution. It is an obstacle they want to remove so that they can pursue continued expansion of the federal government to solve its perception of problems the country faces. For the political Right, the Constitution is the primary way citizens keep the federal government within its sphere, doing what only it can do, and leaving other matters to states, localities, and the people. 

 

U. S. Constitution: Amendment 2, 4, 5, 9, 10, 14

  

My concern in this brief essay is the United States constitution. A wonderful essay by Roger Rosenblatt in a special Fall issue of Life Magazine (p. 9-32) forms the heart of my reflections. My concern derives from the progressive part of the Left that questions the basic goodness of the Constitution.

            Frederick Douglass called it, “a glorious liberty document.” Patrick Henry said, “The Constitution is not a document for the government to restrain the people: it is an instrument for the people to restrain the government - lest it come to dominate our lives and our interests."

            On 2nd Amendment: Most justices held that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home, and that “good cause” requirements such as the one implemented by New York are unconstitutional because they “prevent law-abiding citizens with ordinary self-defense needs from exercising” this right in public. In doing so, the high court explicitly rejected the interest-balancing approach relied upon by many lower courts when analyzing Second Amendment cases, which often results in courts upholding gun control laws under a standard known as intermediate scrutiny.

            If we go to the Fourth Amendment, it curtails any curiosity of the government about us.

            If we go to the Fifth Amendment, a remarkably sweeping declaration amounts to protection for the individual of the vast prosecutorial and condemnatory power of the state. Authors of the Constitution, themselves only recently freed subjects of a heavy-handed empire, suspected that all government were capable of the worst. They especially feared the state’s terrible power to thrown them into dungeons and forget them, to torture them into confessions, or to judge them summarily, with no charges and no witnesses, and seize their lands and possessions. This amendment is an incantation against despotism. 

            The Ninth Amendment suggests a right to privacy in that it affirms that the enumerated rights are not all the rights that citizens may have. The best-known case to interpret the amendment in this way is Roe v Wade. It legalized abortion in 1973. Though the ruling was based on the 14th amendment, in a concurring opinion, Justice Douglas called this amendment a protective mantle guarding freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. These considerations were set aside in 2022 in the opinion written by Justice Alito.

            Justice Alito, writing for the court, capsulized the many errors of Roe as follows: The court incorrectly decided Roe, but that decision was more than simply wrong. It stood on exceptionally weak grounds. Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to ‘viability’) was never raised by any party and has never been plausibly explained. “In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” Thomas wrote in his concurrence. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” The point Clarence Thomas is making is that there are other issues on which the Court has taken away the rights of democratic institutions to engage in a process of public discourse to resolve disputes, such as definition of marriage and so on.

            The Tenth Amendment reserves for the states or the people states powers not delegated by the Constitution to the federal government. During the summer of 1789, as Congress debated the amendments, Samuel Adams was so impressed that he dashed off a letter. This amendment meant that people may clearly see the distinction between federal powers and the sovereign authority belonging to the several states and the personal rights of the citizens. He believed that regulation of diverse constituencies best occurred locally. 

            The Fourteenth Amendment affirms that persons born or naturalized I the US are citizens of the US and of the state in which they reside, but further affirms that no state shall make or enforce any law that shall abridge the privileges or immunities of citizens, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of these laws. The guideline accepted by most legal scholars is that states may grant greater rights than do the federal Bill of Rights, but never less.

            John David Davison said that prior to the Civil War amendments, Democrats asserted that the inherent rights of white men, not just property rights but all of them, required the complete denial of the rights of black Americans. Today, Democrats assert that the inherent rights of women require the complete denial of the rights of the unborn. Justice Roger Taney in his infamous 1857 Fred Scott decision captured this view best when he argued that when the Founding Fathers wrote “all men are created equal,” they did not really mean it. They only meant white men are created equal. If they had really meant that all men are created equal, including black men, wrote Taney, the Founders “would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” Taney’s view, and the view of all pro-slavery Americans at the time, was that the Constitution held no protections whatsoever for black people. They had zero rights, and indeed only the formal recognition of this could fully vindicate the constitutionally protected rights of southern slaveowners. If a white man could be equal to a black man, then a white man was nothing: one could enslave, segregate, and deprive the white man just as whites did the blacks now. The inherent rights of the white man depended on the denial of all rights to the black man. That is why, three years after the Dred Scott decision, the southern slave states seceded from the Union following the election of Abraham Lincoln. If the constitution were to curtail or prohibit slavery, even in the territories, southern slaveowners believed it would destroy their entire way of life, and with it their constitutional rights. Given the stakes, and the principles in question, they felt they had no choice but to secede.

            The goodness of the Constitution resides in the ideals it embodies, its possibility for amendment, and even in the correction that the Court can make of itself.