The American Conservative

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.

Wills:

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.

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David Frum quotes Rod’s recent blog post on gun crime in Baton Rouge in an op-ed for CNN entitled “America’s gun problem is not a race problem.” He doesn’t like the idea of dividing Americans into groups based on their disproportionate rates of gun crime:

 The price of redefining gun violence as an issue pertaining only to “those people” — of casting and recasting the gun statistics to make them less grisly if only “those people” are toted under some different heading in some different ledger — the price of that redefinition is to lose our ability to think about the problem at all.

There’s a bit of a problem here. The post he quotes from was about the difficult, fraught question of whether it’s racist or merely realistic or both to avoid certain dangerous places in Louisiana where most crimes tend to be committed by black men. Rod wasn’t talking about gun policy, nor was he suggesting that gun crime is exclusively a black problem, as Frum seems to suggest. One of his tweets even suggests he knows he’s reaching a bit–Frum says it’s an instance of when one of the “leading” gun control arguments “peeks out.”

Frum favors stronger federal gun laws, Rod is skeptical of their efficacy, and that’s what this is really about. He adds:

… fears of being victimized by violence explain why so many white Americans — especially older and more conservative white Americans — insist on the right to bear arms in self-protection. They see gun violence as something that impinges on them from the outside. They don’t blame guns for gun violence. They blame a particular subset of the population. And they don’t see why they should lose their right because some subset of the population abuses theirs.

What might the fleshed-out version of this argument be? You know, not “peeking,” but fully emerged? That white conservatives oppose gun control because they view their AR-15s and high capacity magazines as a defense against black violence? There are probably some people who think that way, but it’s a mentality more in line with the most reactionary white South Africans than your average American gun owner.

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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.

Government Accountability Project

Perhaps the signing yesterday of the Whistleblower Protection Enhancement Act (WPEA) is a sign of good things to come for our quarreling Congress. Or, if not, perhaps we should let them know we expect it to be.

The bill, which took 13 years to obtain unanimous consent in both the House and the Senate and encountered its share of thwarting from members of both parties along the way, expands protections of federal workers’ right to report government corruption and wrongdoing safely. Congress last revised the Whistleblower Protection Act in 1994. You may remember hearing of federal air marshal Robert McClean, who, in 2003, leaked an unclassified, TSA-internal directive outlining cuts in marshal coverage for long-distance passenger flights during a terrorist alert and subsequently lost his job, and his petition for review. The Court of Appeals for the Federal Circuit, the only court empowered to hear appeals of whistleblower cases decided by the Merit Systems Directive Board (which adjudicates whistleblower complaints), has ruled for whistleblowers in only three of 203 cases in the roughly ten years that followed.

The WPEA initiative has been led by the Government Accountability Project (GAP), a non-profit that attests to the peeks and troughs the legislation traveled as it struggled to maintain its coalition of hundreds of groups demanding upgrades in protections. Besides closing loopholes in the courts process, like the one that said an employee was protected only if he/she was the first to report misconduct, there are also key expansions provided by the bill.

After 13 years of teeth pulling, transparency seems like something we can all agree on. There’s no reverting the process – say what you will about technology, but one undeniable benefit of its omnipresence is the accelerated rate with which it is demanding accountability from both governments and business. Although it approaches a different scale, one wonders what S. 743 can do for the Bradley Manning case, not to mention in motivating states to look at their own legal systems, and ask to what degree they encourage public sector employees to blow the whistle on wrongdoing and abuse. Stephen Kohn at the National Whistleblowers Center notes that the new provisions still dim in comparison to the basic rights whistleblowers enjoy in the private sector. However, surveys like this one conducted by the first law firm to advocate for whistleblowers who report possible violations of the federal securities laws, indicate that 54 percent of Americans have knowledge of corporate misconduct and nearly one in four still fear retaliation in reporting it.

Dana Liebelson has more on President Obama’s about-face on the issue.

Marijuana – smoking it, eating it, growing it in modest amounts — is legal. To even be writing those words is historic. But don’t light up just yet. The new pot laws passed in state referendums Tuesday night only apply to Colorado and Washington, and as far as the feds are concerned, smoking pot is still a criminal offense and a critical threat in the decades-long War on Drugs.

But enough of the buzz kill. There have been small steps toward ending marijuana prohibition — state medical-marijuana laws being the most radical — in the last several years. Recently the tide has turned against draconian laws that have sent pot offenders to prison while drug smugglers and gangs thrive off the black market. Thus more mainstream attention and credibility has been given to plans like the ones passed Tuesday that would regulate, tax, and sell marijuana to adults, just like alcohol, in both Colorado and Washington.

If not for establishment support, including from government figures, law enforcement and the medical community, these measures would never have passed. A medical-marijuana initiative in Arkansas and a legalization plan in Oregon did not pass last night because they did not have the same kind of support.

What does this all mean? First off, Colorado and Washington have a lot of work to do to establish the infrastructure to make this happen (the state of Colorado, by the way, hopes to make anywhere from $5 million to $22 million yearly by taxing marijuana sales). Read More…

Library of Congress / Flickr

By the time you read this, polls will be open in most of the country. In some places, they’ve been open for more than a week. The range and variability of deadlines, eligibility for different kinds of ballots, opening hours, and ID requirements has caused confusion in several states. In Florida, where some voters have waited for hours to cast early ballots, they’ve already been the subject of a lawsuit.

Democratic reformers have a solution to what they regard as a Republican plot to suppress turnout: uniform national standards for voting. Andrew Cohen argues in The Atlantic that “Congress ought to pass a ‘Voters’ Rights Act,’ which guarantees a mail-in option and ensures significant early-voting hours for 10 days before a federal election. That would give working people — you know, the real “middle class” — four full days over two weekends to cast their ballot.”

Such a law would probably be unconstitutional. As Cohen acknowledges, the Constitution reserves the power to organize elections to the states. Nevertheless, he has a point. Voting is more difficult than it should be for many working people. And the range and variability of early voting and absentee options are unnecessarily confusing, quite apart from any intentional efforts to reduce turnout. The question is whether an unconstitutional, centralizing proposal is the best way to deal with these problems.

I don’t think it is. Here’s my simpler and unambiguously constitutional proposal: make the first Tuesday after the first Monday in November a federal holiday. Most of the practical obstacles to voting are rooted in the fact that Tuesdays are workdays. If more citizens had the day off, they’d have less need of absentee ballots, early voting, extended poll hours, and the rest of the mess.

Declaring Election Day a federal holiday wouldn’t force private employers to close for the day. I suspect that many would, however, particularly if Election Day replaced one of the holidays already on the calendar. It won’t be easy to decide which of the existing federal holidays should get the boot. But take a look at the list: do we really need them all?

The benefits of making Election Day a holiday go beyond access. Doing so would also provide an opportunity for demonstrations, celebrations, protests, and encounters with our neighbors. In the 18th century, elections were the occasion for speeches, feasts, games, and, occasionally, drunken riots. We wouldn’t want to bring back the riots. Yet there’s no reason that the rest shouldn’t become part our public culture again. Independence Day is wonderful. But I’d rather see marching bands leading the way to the polls than to the fireworks.

I have no hope that this will happen any time soon. So I’ll get up at the crack of dawn and wait on line for a while before beginning my morning commute. My fellow Americans, we deserve better. However you plan to vote, whether you plan to vote or not, Happy Election Day!

A number of people have wondered why their comments on a particular topic have not shown up on the site. The fact is, they have been excised.

Deciding which comments to allow and which to delete is an imperfect science if it is a science at all (which, come to think of it, it is not). To aid us all in understanding how to set a policy about comments that is fair and understandable, Alan Jacobs has made his first contribution to this site. He has pointed us to Alan Scalzi’s “How to Be a Good Commenter.”

Here are Scalzi’s 10 questions to ask before making a comment. (For a fuller explanation of each, click on his link above.)

1. Do I actually have anything to say?

2. Is what I have to say actually on topic?

3. Does what I write actually stay on topic?

4. If I’m making an argument, do I actually know how to make an argument?

5. If I’m making assertions, can what I say be backed up by actual fact?

6. If I’m refuting an assertion made by others, can what I say be backed up by fact?

7. Am I approaching this subject like a thoughtful human being, or like particularly stupid fan?

8. Am I being an asshole to others?

9. Do I want to have a conversation or do I want to win the thread?

10. Do I know when I’m done?

To which he adds, “No one said being a good commenter was easy. But the good news is that the more you’re a good commenter, the less you’ll actually have to think about being one before you type. It becomes a habit, basically. So keep at it.”

To which I add, we love having you as a part of our conversation about how to work out a practical conservatism to replace the shambles that is for some reason still called the Republican Party. You are as much a part of this project as we are. Ask Scalzi’s questions of yourself, be fruitful, and multiply.

ADDENDUM: Daniel McCarthy, ever the editor, asks me to warn that sometimes comments are swallowed whole by the spam filter. It doesn’t happen often, but it does happen, and we still don’t know why. (We’re working on that.)

I was out shopping on Saturday and found myself following a dark blue minivan down the main street of a nearby town here in northern Virginia. We had just left the town limits when a small boy about four years old climbed out the left rear window of the car and sat on the door frame with his entire upper body outside the car. He was grinning and waving from the vehicle, which was going along at about 40 miles per hour and weaving slightly, suggesting the driver might have been on a cell phone. The little boy sat there for about two minutes before disappearing back inside.

It was possibly the most terrifying experience that I have had in nearly fifty years of driving. I was afraid that if I honked my horn the driver would hit the brake and the boy would fly out, so I just dropped way back so that if he fell out I could avoid hitting him. I followed the driver, who appeared to be a woman in her thirties, passing her as she turned into a housing development. There were several children in the car. She was on her cell phone. I was badly shaken by the incident and now regret that I did not take down the license plate number and report her to the police. It was clear that the little boy was not strapped into a car seat and, while I am all for rights and liberties, I have come around to the viewpoint that cell phones in automobiles are a threat to all of us. I have a hands-free system in my own car and I try not to use the phone at all when driving. But I have noticed that when in the vehicle and receiving a call one tends to tune out and focus on the phone, not on the driving. I am sure readers of this website and magazine have experienced numerous near misses or even worse with other drivers who were seen to be on the phone.

Contrary to that thinking, however, an interesting study by MIT of Boston motorists (admittedly among the world’s most aggressive anyway) suggests that drivers who are risk-takers and careless in general tend to use their cell phones a lot while on the road, perhaps indicating that is not the phone that is the problem but rather the reckless proclivities of those who tend to use it frequently.

In light of that study, whether banning cell phones would have made any difference in the incident I have recounted I do not know, but I do know that I almost saw a little boy die.

Protester dons Guy Fawkes mask. arindambanerjee / Shutterstock.com

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).

Police at RNC Convention in St. Paul 2008. Ben Josephs.

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.

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In the wake of September 11, the NYPD Intelligence Division set up a secret operation to monitor Muslims in the New York area. Working under the sinister title of the “Demographics Unit” and in collaboration with the CIA, officers attended sermons at mosques, hung out in cafes frequented by immigrants from the Islamic world, and infiltrated Muslim student groups at universities around the Northeast. The idea was that constant surveillance of legal assemblies and activities might provide early warnings of terrorism.

What has the NYPD learned from these tactics? According to the AP’s Adam Goldman (no relation of mine), who received a Pulitizer Prize for revealing the program’s existence last year, the answer is nothing. It’s not just that the secret team didn’t generate any prosecutions. According to the assistant chief responsible for the Intelligence Division, the Demographics Unit hasn’t produced any leads since he assumed command in 2006. That’s six years of domestic spying, often simply on the basis of religion and national origin. And without any results.

The legality of the program is in currently in litigation. But the failure to produce useful intelligence removes its practical justification. Threats of political violence may justify expansions of government powers. When the applications of those powers shows that those threats are exaggerated or non-existent, however, they should by removed or restricted. In short, I can understand why the NYPD and city officials once thought the Demographic Unit was necessary. Now the time has come to shut it down.

Of course, that’s not usually the way things go when it comes to emergency powers. Temporary authority has a way of becoming permanent. Criticism may force the NYPD to conceal the Demographics Unit, perhaps by reconstituting it under a different name or in a different division (it’s already been renamed the “Zone Assessment Unit”). But I fear that the domestic counterpart of the national security state is here to stay.