Thursday, May 2, 2013

A quantum of umbrage: What's the Second Amendment done for you lately?

(Update: Thanks so much to Batocchio for (1) carrying on the generous Jon Swift tradition of taking a moment at the end of the year to give a shout-out to blogs who are on the dark side of the street, and (2) keeping us here at p3 on the list.

I was only allowed to submit one piece for the honor, but I really liked this one, too: Toward a basic rhetoric for right-wingers.You can decide.

I recommend that you patronize all of the fine blogging operations on Batocchio's list.)



Okay, I'm at least as much of as absolutist about the First Amendment as, oh, say these guys profess to be about the Second Amendment. (Little Johnnies like these are the reason I refer to Indiana as “the state where I was born, but not the state I'm from.”)

Still, I accept limits on my First Amendment rights, for the sake of the greater good – manner, place, and time, libel, slander, false advertising, perjury, clear and present danger (which, Tom Clancy fanboys should be reminded, is a First Amendment trigger, not a Second). And I'm willing to concede that not everyone who disagrees with what I say is trying to censor me or take away my First Amendment freedoms. In fact, as you might well expect, I stand by Nothstine's Law of Free Speech:
If defending free speech doesn't hurt, at least a little, then you're probably not doing it right.
That's why I support the right of people in the Old Confederacy to sport the Confederate battle flag on public buildings, pickup trucks, T-shirts, dorm room walls, and garages: The uglier the sentiment expressed, after all, the more it likely needs First Amendment protection. (“Heritage” justifications be damned. See below.) Plus, there's a sort of public health angle: Confederate flags serve the same useful purpose as Hazmat warning signs: Danger: Toxic Environment Ahead.

So, if even their bete noir the ACLU will accept limitations on the First Amendment for the greater good, why won't the tea-party conservatives, or the NRA, or its hirelings in Congress, accept any limits – any! any at all! – on the Second Amendment?

Speaking as an editor – and a native speaker of American English – it's undoubtedly the worst-written amendment among the original ten.
As passed by the Congress:
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.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
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

The reason it's such a grammatical dog's breakfast is that it went through some fast and furious last-minute changes:
The real reason the Second Amendment was ratified, and why it says "State" instead of "Country" (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia's vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

In the beginning, there were the militias. In the South, they were also called the "slave patrols," and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings. [...] It's the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, "Why don't they just rise up and kill the whites?" If the movie were real, it would have been a purely rhetorical question, because every southerner of the era knew the simple answer: Well regulated militias kept the slaves in chains.
That's the original intent of the Second Amendment as it was finally, lop-earedly phrased. And that's why it has that clunky preface – which, for almost any other part of the Constitution would be taken dead-seriously by the originalists on the Supreme Court, but not here. Antonin Scalia, please pick up the white courtesy phone. Antonin Scalia, the white courtesy phone, please.

So let's review:

The First Amendment helped bring Vietnam War to an end a little sooner. It's protected our freedom to read what we choose to read. (Same for our children. It's always "for the children," isn't it?) It's protected students' rights to express their social and political views. It's protected the right of American Nazis to demonstrate on the streets of Skokie, IL, a Chicago suburb filled with Holocaust survivors. It's protected satirists and parodists from the people whose dignity might be offended by being parodied or satirized. It's protected individuals' right to dissent and to take unpopular opinions. It's protected our right to privacy and anonymity. It's prevented access to public forums and venues being denied simply on the basis of religion.

And what has the Second Amendment done for us lately? Well, it helped Southern whites put down slave rebellions, and it's made it nearly impossible to prevent well-armed whackjobs from shooting up schools.

Congratulations.

About the only thing that the hard-core gun lovers and I have in common is this: I think that the correct response to unpopular speech is more free speech. They think the correct response to gun violence is more guns.

Actually, they think the correct response to anything is more guns.

1 comment:

LarryE said...

Hi. Came via the Jon Swift roundup.

Two things to interject:

One, the original proposed text of what became the 2nd Amendment flipped the two main phrases, the result of which connects the "right to bear arms" with a "well-regulated militia" even more strongly than the final version does.

Two, it's a bit too facile to regard the amendment simply as a means to preserve slavery. First, the hinted equation of pre-Bill of Rights "militia" with "slave patrols" is false: Colonial militias had been used in battle at least as far back as the so-called King William's War of the 1690s.

Also, I think the fact that the amendment says "State" instead of "Country" ("Union" would have been the more likely alternative) is an awfully thin reed on which to hang an argument, since in many other references in the Constitution the terms are "the several States" or "each State" or the like and some similar form could easily have been used here.

But even if it did mean each individual state instead of the nation (although, yes, "state" is a synonym for "nation" and is used in exactly that sense in the last provision of Article I, Section 9), I'm not sure what that proves. The last provision of Article I, Section 10 strongly suggests that the authors envisioned the possibility of an individual state being attacked and having to defend itself before a broader, more national response could be organized.

Finally, note that the powers of Congress include "to provide and maintain a Navy" with no time restriction, while appropriations "to raise and support Armies" can't be for longer than two years. Those powers also include "calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" along with "organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States."

I can't find a way to read that other than the expectation was that militias would be the first line of defense against attack and that there would be no standing army; rather, one would be raised if the situation required it and only for that time.

Which just goes back to the idea that the 2nd Amendment was about militias, not an individual right to own however many of whatever sort of gun pleases you.