Almost immediately after the the Newtown massacre, National Review’s Charles C.W. Cooke mounted a vigorous defense of gun rights. “American liberties, including the right to bear arms, pre-exist the federal government, and are defined and protected in the same document from which the state derives its authority and its structure,” he wrote. “In a free republic, the people cannot be disarmed by the government, for they are its employers, and they did not give up their individual rights when they consented to its creation.”
With a renewed push for gun control on the top of Washington’s mind this week, I thought it’d be worthwhile to recall historian Garry Wills’s perhaps idiosyncratic view of the Second Amendment. In short, he is inclined to agree with the first half of Cooke’s apologia—individuals have a right to own a gun that pre-exists the Federal Constitution—but disagrees that this right is specifically enumerated in the Bill of Rights.
Wills departs from the standard liberal hedging on this question. Jeffrey Toobin, for example, reads the language of the Second Amendment in two distinct clauses—one having to do with the regulation of militias and the other with the individual’s right to “bear arms”:
The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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 courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.
Wills interprets the language of the amendment quite differently (and I believe more persuasively); he sees it as a coherent whole that is entirely in reference to the regulation of militias. Wills developed this argument most fully in a long 1995 essay for the New York Review of Books, and later included a condensed version of it in his 1999 book A Necessary Evil: A History of American Distrust of Government.
Here he is on the meaning of the phrase “bear arms”:
To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English (“arms”). One does not “bear arm.” Latin arma is, etymologically, war “equipment,” and it has no singular forms. By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war “just-borne arms” and a civil war “self-borne arms.” Even outside the phrase “bear arms,” much of the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). “Arms” is a profession that one brother chooses as another chooses law or the church. An issue undergoes the arbitrament of arms. In the singular, English “arm” often means a component of military force (the artillery arm, the cavalry arm).
Thus “arms” in English, as in Latin, is not restricted to the meaning “guns.” The Romans had no guns; and they did not limit arma to projectile weapons (spears, arrows). It meant weaponry in general, everything from swords to siege instruments—but especially shields. That is why the heraldic use of “arms” in English (the very case Stephen Halbrook invokes) refers to shields “coated” (covered) with blazonry.
And here he is on the verb “to keep”:
Gun advocates read “to keep and bear” disjunctively, and think the verbs refer to entirely separate activities. “Keep,” for them, means “possess personally at home”—a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias. It is precisely in that literature that to-keep-and-bear is a description of one connected process. To understand what “keep” means in a military context, we must recognize how the description of a local militia‘s function was always read in contrast to the role of a standing army. Armies, in the ideology of the time, should not be allowed to keep their equipment in readiness.
“History, philology, and logic furnish no solid basis for thinking the Second Amendment has anything to do with the private ownership of guns,” Wills wrote in A Necessary Evil. But hold on, he continues: this hardly means federal or state governments are therefore justified in confiscating all privately owned guns. The Constitution is not the summa of individual rights. The Ninth Amendment helpfully reminds us of this fact. One may reasonably argue, as Cooke does, that we have a natural right to own a gun, to defend our selves and our property, by lethal force if necessary. Indeed, this right may have seemed so self-evidently obvious that Madison did not deem it necessary to explicitly guarantee (enumerate) its protection in the Constitution.
Why, then, did Madison propose the Second Amendment? For the same reason that he proposed the Third, against quartering troops on the civilian population. That was a remnant of old royal attempts to create a standing army by requisition of civilian facilities. It had no real meaning in a government that is authorized to build barracks, forts, and camps. But it was part of the anti-royal rhetoric of freedom that had shown up, like the militia language, in state requests for amendments to the Constitution.
If Wills is right, it means that conservatives may debate the gun issue on the basis of reason, custom, and commonsense—but without dispositive recourse to the verbiage of the Second Amendment.
A Virginia House of Delegates subcommittee killed a series of bills that would have amended the constitution to automatically restore the voting rights of nonviolent felons once they had served their time. The Senate is expected to do the same today.
GOP-controlled legislatures killing measures which, by design or as a side effect, give more Democrats the vote is nothing new. Lawmakers pointed out that felons did have a procedure to restore the franchise by petitioning the governor. The issue, for the opponents of automatic re-enfranchisement, is the integrity of elections–someone convicted of a felony is of questionable judgment therefore they should be subject to review.
ThinkProgress writes, “Far from just simple procedural act, applying for clemency is no guarantee that whoever is governor will grant the clemency request.”
Strictly speaking that’s true, but Governor Bob McDonnell has approved the vast majority of these petitions since being elected and is a firm supporter of reintegration. He supported the bills, along with Attorney General and lone 2013 GOP gubernatorial nominee Ken Cuccinelli, and was disappointed at the outcome:
“Once individuals have served their time, and paid their fines, restitution, and other costs, they should have the opportunity to rejoin society as fully contributing members. As a nation that embraces second chances and believes in redemption, we want more productive citizens and fewer people returning to prison. Automatic restoration of constitutional rights will help reintegrate individuals back into society and prevent future crimes, which means fewer victims and a safer Virginia.”
The easy interpretation of House’s motive for scuttling the bill is pure self-interest. As with many Voter ID laws, the GOP claims to be looking out for the integrity of elections while making voting more difficult for reliably Democratic constituencies.
Yet with the number of felons McDonnell has pardoned, it’s hard to claim that there’s a failure in the current approach to reintegrating ex-felons, and certainly not a big enough one to justify a constitutional amendment. So long as the governor’s hand doesn’t get tired.
With the shock of the Sandy Hook Elementary shootings still reverberating, TAC today presents a symposium of views on the limits to the right to keep and bear arms. Zack Beauchamp of ThinkProgress.org makes a progressive appeal to conservatives for gun control, while Jack Hunter argues that firearms prohibition is as irrational as liberals see the death penalty as being. Alan Jacobs, meanwhile, considers the issue in light of the Christmas season and the moral demands of Christianity. We also re-present Brian Doherty’s review of Living With Guns: A Liberal’s Case for the Second Amendment, a piece that went to press before the Newtown massacre.
The Sandy Hook Elementary School massacre, about which I’ve refrained from commenting for lack of anything useful to say, has occasioned a debate about the need for renewed gun-control legislation at the national level. That’s fine. I’m doubtful that advocates will have much to show, legislatively speaking, after this outcry subsides. And with any luck, mass shootings will continue to be a rare occurrence and schools will remain the statistically safest place children can be.
Such, at any rate, is the reasonable, conservative/civil-libertarian case against overreaction.
Here’s a conservative version of the case for overreaction (via the blogger Econophile):
Arm some teachers and staff members so they can protect themselves and our children. I know this will get a big reaction from those against firearms, but think it through in light of the reality of the issues that I have outlined. It is not possible to prevent these tragic shootings before they happen, so should we leave our children unprotected while some maniac walks around and shoots them at will?
BigHollywood’s John Nolte agreed, tweeting: “Why are schools not treated like airplanes as far as security? Are we going to ban mega-clips and then remove air marhsals [sic]?” And: “Why are airplanes secured with armed personnel but not schools? We’ve stopped hijackings and terrorism. All Left wants tho is gun control.”
So let me see if I have this straight: more gun control is tantamount to creeping tyranny, but succumbing to hysteria and fear and calling for armed teachers is a blow for freedom.
After Colorado and Washington legalized marijuana via ballot initiative this month, the Department of Justice warned about the potential “constitutional showdown” between the states and federal enforcement authorities. The easiest way to avert such a showdown would be for the DEA to use its discretionary authority under the Controlled Substances Act to simply reschedule pot. They’re not going to do that.
In the face of such a conflict you’d think, drug war politics aside, that the GOP would stand on the side of state rights and fewer regulations. They might show their limited government bona fides, and their sincerity in reaching out to young libertarian-leaning voters, and maybe even advance some sort of bill to ameliorate the constitutional problem. Congresswoman Diana DeGette, a Democrat from Colorado, has beat them to the punch with a bill watering down the language of the CSA.
Jacob Sullum writes:
[T]he bill so far has only two Republican co-sponsors: Ron Paul of Texas (naturally) and Mike Coffman of Colorado. It seems like Dana Rohrabacher (R-Calif.), who backed a more ambitious Paul-sponsored bill aimed at repealing federal marijuana prohibition, should not be shy about adding his name to this list as well. How about Justin Amash (R-Mich.), who “supports federalism on all legislation not specifically authorized in the Constitution”? Any others? Now is put-up-or-shut-up time for avowed federalists in the House. It is certainly strange, if not embarrassing, to see that Democrats are more enthusiastic about a bill with “states’ rights” in the title than Republicans are. Behold the power of pot.
The merits of legalization aside–which are considerable, even from a conservative standpoint–eventual change is beginning to seem inevitable. Majorities now favor it, and two states have just taken the plunge. From a purely cynical standpoint, it behooves the GOP to get ahead of the curve on this, or other issues for which there’s a strong conservative case, such as copyright reform. Can you imagine the outrage among the liberal base of the Democratic Party if Harry Reid were the one to block these bills? If a bill respecting federalism for drug laws passed the House but died in the Senate because of the Democratic Party’s fondness for the policemen’s union? It seems they’d prefer to let the Democrats carry the banner of federalism.
Government, being “the only thing we all belong to,” is a peculiar institution with unique responsibilites. It’s like a club, you see, but you don’t get to choose to join, and the club president happens to have the power to kill or imprison you without a trial. But membership has its benefits, and having protected us from the tyrannies of communism and fascism, some now expect protection from the tyranny of biology itself. And that goes for murderers, too:
In a first-of-its-kind ruling, a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner. Chief U.S. District Judge Mark Wolf said he based his ruling on the recommendations of doctors at the commonwealth’s Department of Correction who prescribed sex-reassignment surgery as “the only form of adequate medical care” for Michelle Kosilek.
Kosilek, who used to go by “Robert,” is serving life in prison without the possibility of parole for the 1990 murder of his wife. Judge Wolf, describing his 126-page order as “unprecedented,” said that denying Kosilek the surgery was a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. (WSJ)
Several news stories don’t mention the circumstances of his wife’s death, but the National Law Journal has a brief line:
Kosilek murdered his wife, Cheryl McCaul, in 1990 after she expressed anger upon finding Kosilek wearing her clothes. The two met in a drug rehabilitation facility, where McCaul was a volunteer. According to the ruling, she told Kosilek that “a good woman” could cure his transexualism.
The court’s ruling is, of course, just the sort of compassionate governance Sandra Fluke would support, breaking down the persistent barriers of heteronormativity and gender bias which bear consideration, presumably, even for convicted criminals. On that, isn’t Fluke right? The cost alone of these surgeries shouldn’t be grounds to deny them, inmates get (admittedly often poor) cancer treatment and costly care for plenty of other ailments, why not cover gender dysphoria too? If you concede that prisoners should be cared for and treated humanely, it’s hard to argue they shouldn’t receive the surgery, especially if a prisoner who doesn’t receive it is likely to be found hanging from his or her shoelaces.
Fluke, the activist and Georgetown Law student who has become the poster child for state-subsidized birth control–not reproductive rights writ large, she remains conspicuously silent about whether or not women have the right to purchase contraceptives over the counter–will speak tonight at the Democratic National Convention. She argued for taxpayer-funded sex changes as recently as 2011, as Charles C. Johnson reminds us:
Fluke and co-editor Karen Hu advocated remaking U.S. law to remove what they called a “gender bias” at the root of denying coverage for “transgender medical needs,” describing it as “a prime example of direct discrimination.”
“Transgender persons wishing to undergo the gender reassignment process frequently face heterosexist employer health insurance policies that label [gender-reassignment] surgery as cosmetic, or medically unnecessary and therefore uncovered,” Fluke and Hu wrote for the Georgetown Journal of Gender and the Law. The review article was titled “Employment Discrimination Against LGBTQ Persons” and appeared in print in 2011.
By some estimates, sex change operations can cost between $15,000 and $20,000; the cost for some procedures can be as high as $50,000. Fluke and other advocates want insurers to cover all such operations. In general, assuming the costs of new coverage mandates tends to raise rates for all enrollees in a given health-care plan.
It’s that time again: the quadrennial alarm over real and imagined (if not plainly hyperbolic) dangers from national convention protesters and their dark and dangerous siblings, the “anarchists,” or “black bloc” brethren, who are always expected but never really end up coming to the party, at least not in anticipated numbers or force. The only “activity” reported at the 2008 Republican convention in St. Paul, for example, was the arrest of a man who police said was planning to lob a molotov cocktail during the festivities. The other terror charges against supposed convention anarchists, who were raided and arrested before the event, were eventually reduced to misdemeanors or dismissed entirely (a $50,000 settlement against police was awarded to three of the activists, otherwise known as the “RNC Eight,” in 2011).
Nevertheless, the organizers and the vast security apparatus assembled for next week’s Republican National Convention are already sounding the alarms over potential “extremists” amid the expected Occupiers and other protest groups, and the media is delivering it with well, the usual credulity.
“Federal authorities are urging law enforcement agencies across the country to watch out for signs that extremists might be planning to wreak havoc at the upcoming political conventions — by blocking roads, shutting down transit systems and even employing what were described as acid-filled eggs,” read a FOX News report on Wednesday. The story was based on a joint bulletin by the FBI and Department of Homeland Security obtained by CNN, which warned that anarchists from New York City might be planning to travel to the Tampa convention to disrupt the three day political confab. That followed this convenient AP report on Tuesday :
Tampa police say they have confiscated “suspicious” items from the rooftop of a downtown building located about a mile from where next week’s Republican National Convention will be held. A police statement says the items included bricks and pipes. They were found on the roof of a two-story medical office building.
Spray-painted nearby was a figure wearing a Guy Fawkes mask, similar to the main character from the film ”V for Vendetta.” The movie was adapted from a graphic novel about a masked anarchist vigilante battling British fascism in the near future. The mask has been used by the Anonymous hacker collective, as well as participants in “Occupy” protests … Tampa Police Chief Jane Castor said she believes the items were put there by protesters for use during RNC demonstrations. ”It is disconcerting, but it’s not surprising,” she said. “This is normally how things proceed leading up to a large event.”
Police are also investigating whatever link the rooftop finding may have with a blurry online video in which an unidentified person in a Guy Fawkes mask (see the image above) appears to be threatening the convention. The video has drawn a range of reader responses from across the web, from those who call it a cynical attempt by police to justify their new toys (tasers, tanks, surveillance cameras, etc.) to others who cry for a hard blue line of smoke and steel when the protesters finally arrive. Like this nugget from MikeMC1970 on Breitbart.com:
Time to break out the national guard, the rubber bullets, the bean bag shot, the pepper spray, the pepper balls, and the tasers. Meet these morons with hard smiles and even harder truncheons.
The fact is, as I reported in March, the police have all those things and more, readied for both Tampa and the subsequent Democratic National Convention in Charlotte, NC.
Despite horrific shootings in Colorado and Wisconsin in recent weeks, gun-control laws aren’t likely to make a comeback. Spectacular but sporadic outbursts do not, as far as I can tell, move voters to demand limits on firearms ownership. Restrictions on Second Amendment rights were politically viable for about 20 years as a response to rising urban violence (the big cities still, for the most part, maintain their anti-gun laws) and the racial politics of the ’60s and early ’70s. Consider California’s 1967 Mulford Act, signed by Governor Reagan, which prohibited open carry and elicited an armed (but peaceful) protest in Sacramento from the Black Panthers.
Gun control was the offspring of liberal nannyism and racialized right-wing fears for law and order. The latter have had a different outlet in recent decades, with an emphasis on prisons and unleashing the unitary executive — when there’s a Republican in office, at any rate — against subversives real or imagined at home and abroad. Safety-first liberalism by itself doesn’t have the mass appeal to give gun control political currency. There are millions of gun owners, and unless millions more Americans fear they might be victims of gun violence, there won’t be any national momentum for restrictions.
But a reasonable liberal might argue that trigger locks and limits on the number of firearms anyone is allowed to own, even an outright “assault weapons” ban (as opposed to weapons that cannot be used for assault, presumably), ought to be up for discussion. If a little nuisance for gun enthusiasts stops even one killing, isn’t it worth it? Who needs to own more than, say, two firearms or possess high-capacity magazines?
This kind of argument for seemingly common-sense restraint of civil liberty is something one hears from every side of the political fray, depending on the issue. You can make the same case for modest restrictions on free speech — why not confine protesters to designated areas where they can freely (and futilely) exercise their First Amendment rights without risking a riot? — and for applying a bit more law-enforcement scrutiny to Muslim Americans or other feared minorities. Most members of the targeted group are clearly nonviolent and not dangerous; the trade-off is supposed to be a slight loss of liberty to a wide group in hopes of forestalling an occasional James Holmes or Nidal Hasan. Statistically, the risk to any American from owners of legal guns or from the Muslims that Pamela Geller and company demonize are minuscule. But those who buy this argument for restricting liberty claim that the consequences of minor abridgements and infringements are so small that even preventing one incident is worth it.
Hogwash. It might save lives at the margin, too, if every American riding in an automobile were required to wear a helmet, but even Michael Bloomberg isn’t contemplating that. Risk is a corollary of freedom, and while there may be irresistible political pressure to compromise liberty when there are enormous risks to the general public, it’s with good reason that there is little constituency for such things otherwise — unless, that is, dangers are magnified out proportion by ideologues and ill-premised fears are indulged by people who wish to wallow in timidity or paranoia.
The next time a liberal wants to restrict gun ownership, he should stop to think whether he would restrict the rights of minorities on such “better safe than sorry” grounds. Right-wingers agitated about Sharia likewise ought to ponder whether they would agree to restrictions on their own Second Amendment rights under the same precautionary pretext. You can consistently limit both sets of liberties, of course, but better to consistently refuse to circumscribe the rights of others to assuage your own fears.
Hold on to your tin hats and pocket Constitutions because a little remarked-upon court decision may bring the domestic drone age one flight closer to your doorstep.
Only one American has been busted so far with the aid of a predator surveillance drone since domestic law enforcement began using the weapons of war-turned-spy machines in the last few years. Thanks to Federal Aviation Administration (FAA) documents obtained by the Electronic Frontier Foundation (EFF) this spring, we know there are 60 entities (including the military, various federal agencies, local police and universities) in 20 states permitted to use drones. But the case of Rodney Brossart of Lakota, North Dakota, represents the first time a drone has been unleashed by police (in conjunction with the Department of Homeland Security) to help sniff a suspect out of his own property. Once police knew where he was and that he wasn’t armed, a SWAT team swooped in and grabbed Brossart and his family members. This final action and his subsequent arrest occurred after a heated cattle dispute led to “sovereignist” Brossart & family allegedly chasing police off their 3,000 acre farm with guns and engaging in a 16-hour standoff. Read more about Rodney Brossart here and here.
Sounds like the Old West range war meets Minority Report (remember, those creepy robotic spider spies?), but this weekend it became a much bigger and very real story, as Brossart’s motion for dismissal based on what he believed to be the unconstitutional use of drone surveillance by the government was rejected by the court and the charges against him upheld. According to U.S News & World Report’s Jason Koebler, who has been following Brossart’s travails:
Brossart’s lawyer argued that law enforcement’s “warrantless use of [an] unmanned military-like surveillance aircraft” and “outrageous governmental conduct” warranted dismissal of the case, according to court documents obtained by U.S. News. District Judge Joel Medd wrote that “there was no improper use of an unmanned aerial vehicle” and that the drone “appears to have had no bearing on these charges being contested here,” according to the documents.
Experts suggested that Brossart’s case was thin from the outset as the Supreme Court had already upheld the use of helicopter surveillance of private property in the 1986 case California v. Ciraolo. In that case, the highest court said the police did not violate the Fourth Amendment rights of Dante Carlo Ciraolo, who was growing marijuana in his backyard. The police helicopter’s warrantless “hover and stare” at his uncovered cultivation from 1,000 feet was well outside Ciraolo’s reasonable expectation of privacy. SCOTUS then reaffirmed this precedent three years later when it sided with the government in upholding a conviction against a man who was busted for growing pot in his 5-acre backyard. In Florida v. Riley, the court said it was perfectly constitutional for police to gather evidence, without warrant, by hovering 400 feet in a helicopter above the man’s property, peeking into two broken windows of his private greenhouse where the illegal weed was growing.
This does not bode well for folks hoping to draw a line in the sand against the dragonfly stealthiness of drone surveillance in America. And that’s the key. Unlike the damnable noise made by your standard helicopter, drones, which can get lower, are quiet and often undetectable. Brossart said he didn’t even know about the drone on his property until the case was presented to him in court. Drones are intrusive, and we know from experience that if the government, not to mention private corporations once they get the green light, will presume sweeping authority until the courts tell them to knock it off.
Right now, those 60 aforementioned entities have taken out some 750 authorizations from the FAA to use drone technology on U.S soil since 2006. No one knows how many of these mechanical insects are being deployed (here is a map of what we do know). But expect to see much more of their use in law enforcement surveillance operations — now that they’ve been given the blessing to use them, sans warrant.
New revelations from David Maraniss’ forthcoming book throw the President’s war on state-sanctioned medical marijuana dispensaries and his own personal behavior into stark relief. Though he remains the first chief executive to admit to smoking, inhaling, and enjoying the drug, the extent of his former habit was never really known. Until now.
Washington Post editor David Maraniss‘ forthcoming book Barack Obama: The Story at points describes the president’s marijuana hijinks during his high-school and Occidental College days. Book excerpts posted online reveal that young Barack Obama frequently smoked marijuana, and he and his “choom gang” developed clever strategies for how to better maximize the impact of the “sticky-green.”
In light of these stories, shouldn’t President Obama offer every American the right to “choom” (verb, to smoke marijuana), instead of continuing to lock up marijuana users for hitting three-foot bongs like he did?
And it just so happens that the excerpts from Maraniss’ book arrive the same week Penn Jillette delivered this scathing rebuke of Obama’s drug war hypocrisy, noting that if Johnny Law had ever caught up with the Choom Gang, he probably wouldn’t be where he is today:
Reason’s drug policy hound Mike Riggs tweets, “Obama smoked pot, gets the nuclear football. We smoked pot, and get to play football for one hour a day with supervision.”
According to a recent Rasmussen Poll, 56 percent of Americans favor an approach to marijuana policy that includes legalization, taxation, and harm reduction, rather than the drug war’s inheritance of high incarceration rates, police militarization, and the destruction of Mexican civil society.
This is the issue that will drive the most socially liberal voters to Gary Johnson this year, now that Obama has drawn a contrast with his challenger on same-sex marriage. Given the number of registered independents these days it’s futile to wonder whose camp Johnson will draw most from–talk of spoilage is a partisan guilt trip, nothing more–but the thrill is gone for many of the young, temperamentally libertarian people who voted for Obama in 2008.
The drug war is the single biggest contributor to the skyrocketing incarceration rate in the United States. Studies typically estimate the percentage of the prison population imprisoned for nonviolent drug-related offenses at 20-25 percent, much higher for women and blacks.
Update: Riggs and Nick Gillespie point out some more amusing/callous hypocrisies: a young Obama who once bogarted many a joint–he called them “interceptions”–is now Bogart-in-Chief, and the man who punishes medical marijuana users used to punish his stoner friends for wasting weed.