Sunday, October 30, 2016

The Slippery Slope of the Second Amendment

A comment to a Facebook post made me cringe the other day. The subject was the upcoming presidential election and the author, clearly not a supporter of Hillary Clinton, said something to the effect that government had better not try to infringe upon our right to bear arms as that would amount to tyranny. Therefore citizens would have every constitutional right to forcibly resist. Then the commenter added, gun owners will resist, because, well because they have guns. In other words, if Clinton, who many in the gun crowd erroneously believe is planning to do away with the second amendment, is elected president, there might very well be armed resistance from private individuals.

As I brought up in my post titled, An open letter to some of my Trump supporting friends, I pointed out that our democratic republic is based upon two very basic concepts, one, that the minority accepts the will of the majority when it comes to electing officials to represent us in government and two, the majority accepts the rights of the minority as defined in the constitution. Therefore if for example, the majority of Americans decide we should go back in time and allow the ownership of slaves, that would not be possible as the 13th amendment to the US Constitution explicitly forbids it.

Ah you say, but an amendment to the constitution can be repealed. This is true but in order to do that, a new amendment nullifying the old one has to be introduced. For it to be ratified, two thirds of the Senate plus two thirds of the House of Representatives must approve the new amendment. If that happens, the issue must then go before the people of each state for a vote and two thirds of the states must vote in favor of the constitutional amendment. OK there is another even more difficult way which involves state legislatures, constitutional conventions and three fourths approval from all parties. Clearly it's no easy task, and for good reason. Only once in this nation's history has an amendment to the constitution been repealed, the 18th, much to the delight of all of us who on occasion mind you, like to partake in the juice of the barley.

So our friend the gun guy and all his toting yahoo friends need not worry about a Hillary Clinton administration sweeping into office and repealing the second amendment, because she would have no constitutional right to do so, nor would the judges whom she would potentially nominate to the Supreme Court.

However what the Supreme Court can do, is re-examine the second amendment, how it was intended to be implemented by its eighteenth century authors, and how it relates to us today in the twenty first century. Unfortunately for us, the wording of the amendment is vague, two separate clauses which by themselves are clear, but when read together are ambiguous:
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.
To the "Second Amendment People" as Donald Trump calls them, or SAPs for short, it is the second clause that carries most of the weight: "the right of the people to keep and bear Arms, shall not be infringed" along with a few words cherry picked out of the first clause, namely, "security" and "free state".

But there still are those troubling words in first clause: "well regulated militias". To the other side, for convenience sake I'll just call them the non-SAPs, those three words are the key to the entire amendment.

Some non-SAPs would argue that as there was no standing army or police force at the time the Bill of Rights was introduced into the constitution in the late 1780s, the newly born nation depended upon those "well regulated militias" for its defense. As we today have both a firmly established, full time military, as well as police forces administered at every level of government, militias made up of private citizen soldiers are no longer necessary, rendering the second amendment irrelevant and obsolete just like the third amendment which states that:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law..
A less extreme non-SAP interpretation focuses on the term "well regulated", implying that while we should still observe the right for individuals to own guns, the government still reserves the authority to regulate the sale and distribution of firearms. Therefore, so called gun control laws are not only allowed by the amendment, but are explicitly spelled out by it.  

As far as I can tell, the relationship between the two clauses of the Second Amendment have been examined by the Supreme Court a few times.

In the 1886 ruling on the Presser vs. Illinois case, the Court ruled that the amendment was indeed a right of individuals, not militias. The court also ruled that the federal government cannot impose regulations upon gun ownership, but local and state governments can.

The Court's 2008 ruling in the District of Columbia vs. Heller case, the Court ruled against the Federal law that prohibited individuals in the District of Columbia from owning handguns, thereby upholding the first part of Presser vs. Illinois.
The Second Amendment guarantees an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Two years later, seemingly reversing the second part of Presser, in McDonald vs. City of Chicago, the Court struck down a similar law banning handguns at the state and/or local level:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis (legal precedent) counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.
Both Heller and Presser were extremely contentious 5-4 decisions. Despite their razor thin margins of success, both decisions emboldened the SAPs. Their movement to ensure that the right to bear arms is absolute, has gained momentum. It think it is fair to say that never in the history of this country have the laws regarding the sale, possession and use of firearms been so liberal (in the literal sense of the word).

In  light of these two decisions being so close, it is understandable why the SAPs might be concerned that a Democratic administration (whomever the president) would nominate judges who might vote the other way, especially given that the right wing has lost is most stalwart voice on the Court with the death last year of Justice Antonin Scalia.

However, as we've seen with the Roe vs. Wade case in an era of a conservative majority on the Court, it is extremely difficult to overturn an existing Supreme Court decision. So it's not unreasonable to expect the Heller and Presser rulings and unprecedented access to guns to stick around for a very long time, regardless of the people sitting in the Oval Office and on the Bench.

Unfortunately, logic and reason are not the strong suits of most Donald Trump supporters. My call to reason directed at my Trump supporting friends, including the request to limit their published criticisms of Hillary Clinton to facts coming from reliable, unbiased sources, was only met with more blathering, and trumpeting of the same old vitriol, conspiracy theories and misogynist crap from the likes of Rush Limbaugh, Michael Savage, Ann Coulter and of course, Trump.

In fact it is Trump himself who is inspiring this unprecedented call to arms against the government of this country, by making the absurd assertion that this election is rigged against him. And like automatons, most of his followers believe everything he says, despite miles and miles of reliable evidence to the contrary.

Most Americans are counting the hours until this election is over. As for me, I'm not so sure, as Donald And the Trumpistas are promising even more ugliness if things don't work out their way on November 8.

Hold on to your hats folks, it's going to be one hell of a bumpy ride.

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