You know the drill. The Second Amendment is referenced on one side to focus on the right to keep and bear arms, while the other will focus on the "militia" or "well-regulated" part. Text and history is used by one or the other side as if the results are pretty obvious, the other side both stupid and even purposely misleading (at best). This is seen in court opinions too as shown by an "originalist" 9th Cir. opinion a few days ago that argued that public carry can be strictly regulated. The dissent strongly disagreed. The Supreme Court is bound to deal with that issue eventually and a heard a Fourth Amendment case with Second Amendment implications.
"The Second Amendment" is often seen as a kneejerk anti-gun regulation approach, reflecting common rhetoric. But, though the new conservative supermajority might push the envelope, that can be taken too far. After all, other than handgun bans, what exactly does D.C. v. Heller block in way of likely to pass gun regulation? It did strike down a safety lock provision, but that was in the home. And, they barely addressed the matter at that. And, much of the concern is actually the Fourteenth Amendment, which historically has a stronger case for an individual right vs. militia approach too. On some level, "Second Amendment" requires more lifting there.
The smart approach here is to support gun regulation and accept some basic constitutional right to own firearms. This was long a well accepted thing though a few states did have particularly restrictive gun laws, especially in certain urban areas (so the two major cases involved Chicago and D.C.). Again, the main concern here would be a handgun ban though certain state courts (and constitutional provisions) have a stronger view that might go further. The 5-4 Supreme Court approach here is in that sense disappointing. The ultimate problem is policy -- a background check law should be constitutional. Printz v. U.S. did block requiring state officials to take part in such a law, but in 2021, it is unclear how problematic that would be. This is especially with Virginia now under Democratic control.
The Fourteenth Amendment angle underlines that the Constitution should be looked at as a whole here. For instance, Congress is given power to call up the Militia for specific reasons: "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Congress also has the power to "prescribe" means of "discipline" though states have the power to train. This opens up potential for abuse and is the background to the Second Amendment. Note though the reasons -- it isn't just as some say as a means to protect slavery. The militia as a whole was understood as a basic republican institution, akin in some ways to the jury.
[One lawyer asserted that the militia was only for external usage, which is a sad ignorance of text and history. Another person who has some professor role from what I can tell thought it ridiculous to say the modern day police even had something to do with slave patrols. What exactly does the person think such things did? It was also argued capturing slaves wasn't really a "police" function. Modern day police go after "fugitives" regularly. I think this is a lack of insight, certain terms seen in misguided narrow ways.]
The militia was called up locally to deal with public disorders that are now generally addressed by the police. So, for instance, if a public protest got out of hand, the militia might have been called up in the early 19th Century. The police is now largely given the job to address this sort of thing. The same with the slave patrol, which often would involve private parties (the Fugitive Slave Law of 1850 also allowed usage of private individuals). Finally, the police and various other non-military official forces are in place to carry out the laws of the nation.
When we think of a modern militia in this country, we think of the national guard. But, I would argue that the police is also a form of the modern militia -- namely a select organized militia. Note that Art. 1, sec. 10 bans states from having "troops." Troops suggests a military force, an army. But, the states can have armed police. Before the modern day police department, few state officers served that function. If necessary, however, the militia was there. The militia was more civilian in nature and the men even had the power to elect the officers, the leadership the governor of the state. Guns for self-defense also protected homes and farms.
The modern day police department, therefore, arguably should be more "well regulated" by the people -- not above the fray. Years back, I read an article suggesting the modern police department is in fact unconstitutional. Its abuse of power in this respect is not hard to see in some sense at least. One basic problem here is the way qualified immunity has been used to protect them even when they misuse their powers. Police also at times seem like a modern day domestic "solider" that threatens the home even if not quite in Third Amendment terms. Multiple police abuses that received much notoriety did involve "home invasions."
The text of the Bill of Rights has been used to draw out a "right to privacy" even if the explicit terms do not go that far. This is a necessary and proper approach really. I think a good argument can be made that a right to owner a firearm and to be able to use some degree of force to protect the home can be covered in this respect. The Ninth Amendment also factors in here. People have explained how guns were in fact regulated in a two track way: personal self-defense and militia use.
The Second Amendment in this fashion has been overused, but there is another angle there too. "The militia" is meant to cover "the people" at large, more so now. This can be used when discriminatory laws and practices arise, including when GLBT groups are harmed. Likewise, as noted above, Congress specifically has the ability to regulate the militia in place for federal use. Congress = representatives of "We the People." And, when the Second Amendment is applied to the states, the regulation part also is included. This includes regulation and oversight of the police.
And, what if the police as a separate entity is parred back and more civilian involvement -- more of "the people" -- was replaced? The Supreme Court case involved a "care-taking" role of the police that often is better served by other groups such as social workers. The Second Amendment can be understood to advance this as does the Third Amendment, both having wider concerns that touch upon these issues. Think broadly here.
Originalism is a tiresome and often troublesome tool that conservatives and others use, overlapping some with the text. Both tends to be used selectively and in a confused fashion. History and text need not be our enemies here, especially if we don't expect too much from them (the attempt to make originalism "liberal" only works up to a point). Like use of religion for liberal ends, this might be seen as ridiculous by some, the tools seen as only useful in one direction. But, one can be surprised.
Anyway, to repeat, Biden during the press conference said that he supports gun regulation and usage of executive action, but it was an issue of timing. It's a big problem, constitutional, social/cultural, political and probably more. And, part of it I think requires some degree of shame. Cigarettes, for instance, now is seen as somewhat distasteful. The usage of "gun theater" by some members of the government comes to mind. It is a bigger problem, including glorification of guns and use of violence in entertainment.
Consider how few people are actually executed in this country as compared to the number of people "disposed of" by guns and other usage of force in entertainment. Yes, the government kills people with guns, but many police never shoot theirs during their time of service. Heavy-handed use of force need to be basically embarrassing. The increase of protest (Black Lives Matter etc.) hopefully will help here.
No comments:
Post a Comment
Thanks for your .02!