Saturday, April 17, 2010

The Wild West

By now you have probably read that Arizona Gov. Jan Brewer, Republican, signed a law making it legal to carry concealed weapons. The gun fight at OK Corral is about to be re-enacted, only it will probably be in a school, restaurant, or a shopping mall.

To further compound this insanity, this law removes a law on the books requiring a permit to carry a gun. To get the permit you had to have a one day course in the law and on how to use the gun and a background check. By sometime in August that will no longer be necessary. God, give me strength.

Sen, Pierce, Republican, said the signing of this bill on the anniversary of the massacre at Virginia Tech, where 32 students were killed, was appropriate because if that law had been in effect the massacre could have been prevented. Does this nitwit have half a brain? I would say that if the gun laws had been more stringent that mentally deranged shooter would not have had a gun to begin with.

I am probably living dangerously in writing this because any yahoo who disagrees with my post can now come into my home to do repair work, pull out a gun from his tool box and shoot me. I am willing to be a martyr for the cause. (Do you think that heaven will provide me with 70 handsome studs?)

I remember that many years ago there was an article written by a retired Chief Justice of the Supreme Court which, after much study, determined that the prevailing part of the Second Amendment was "a well run Militia". And if you were not a part of a Militia the Amendment did not give you the right to own a gun.

I decided to turn to Wikipedia to see how the right to bear arms evolved into this current free for all that the NRA has foisted on us. I discovered that the arguments 'for and against' that right pertaining to individuals began before the amendment was drafted and continue to this day.

Pre-amendment:

In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and state militias as important for one or more of these purposes:

  • deterring undemocratic government;
  • repelling invasion;
  • suppressing insurrection;
  • facilitating a natural right of self-defense;
  • participating in law enforcement;
  • slave control in slave states.
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment is disputed.

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias which excluded the Loyalists and then sought out to stock up independent armories for their militias.

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. An unworkable division of power between Congress and the states caused military weakness, and the standing army was reduced to as few as 80 men. There was no effective federal military response to an armed uprising in western Massachusetts known as Shays' Rebellion. Subsequently, the Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size


Drafting the Amendment:


Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that
James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions." In contrast, historian Jack Rakove

One aspect of the gun control debate is the conflict between gun control laws and the alleged right to rebel against unjust governments. Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation, as Alexander Hamilton explained in 1788:


If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists. Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).

There was an ongoing debate in the 1780s about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the ongoing revolution in France. A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens, prohibiting citizens from arming themselves or the federal government prohibiting the southern tradition of using their state militia for slave control.

Post-amendment:

The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:


The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
In this quote, Story describes a militia as the "natural defence of a free country," both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.

Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted. Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment. An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a "right of resistance" is protected by both the right to trial by jury and the Second Amendment.

~~~~~~~~~~~~~~~~~~~~~~~

Because I am not a legal scholar I will get flack from those who believe that the amendment gives the right to every individual to bear arms. I take issue with this premise on three counts. 1.) Why was the phrase "well regulated militia" even necessary in the amendment if it applied to all individuals? 2.) The phrase means just that; a well regulated militia. and 3) The term 'bear arms' refers to war. If you are not part of a militia it does not grant you, as an individual, a right to carry a automatic weapon that can gun down 32 people in a matter of minutes.

I wish the framers of the Constitution had resolved this and made the meaning of the amendment clearer. (Of course, they could not forsee the horrible weapons now available at every gun show.) Here we are, over two hundred years later still arguing this right.

I grew up in a home that had a large upright locked display cabinet with hunting rifles behind the glass. My step-father was an avid hunter and always filled his license. I ate so much venison and elk growing up that I used to complain that I would bugle. I actively avoid all game meat now.

I have no objection to single shot hunting rifles to kill birds and animals for human consumption. I do object to guns that spray a series of bullets in a matter of seconds. Where is the sport in that? And I have no objection to hunters owning hunting rifles or pistols after first undergoing a required background check and training course for the use of weapons.

I vociferously object to the NRA using their vast resources to intimidate Congress into weakening gun laws. Or in overturning a city's right to ban guns.

Most of all, I object to the Arizona legislators and governor making this a more dangerous place to live. To their shame, they didn't even restrict businesses that serve liquor. Listen for the gun fire. It's coming.

~~~~~~~~~~~~~~~~~~~~~

Another ill conceived idea by the 'leggie' (word 'leggie' thanks to the late great Molly Ivins).

As if toting a gun in Granny's purse isn't bad enough, our stupid, idiotic, lame brain 'leggies' have now proposed a worse bill, if possible. See this morning's NYT article for full particulars on the Immigration bill. It isn't law yet, but given Jan Brewer's record it soon will be. Who elects these neanderthals? Well, Phoenix does. Tucson does have some good legislators who fight hard to prevent such terrible bills from passing, but they are outnumbered. Here's the link to this outrage.

http://www.nytimes.com/2010/04/18/opinion/18sun3.html?th&emc=th

17 comments:

Rain said...

I think you and I have discussed this before and know that I believe in the right to carry a gun and have myself a concealed weapon permit although I don't carry very often because it's always risky to know when it's safe to have one with you and when could you actually use it if you were threatened. Having grown up with guns, always lived in a home with them, they seem natural to me; and yes they do require teaching safe handling.

The thing is though any repairman now could walk into your house and use a gun to kill you because if they want to kill you which is illegal, they probably won't care about the law regarding carrying one anyway.

I had a nightmare the other night where I was attending our little local church and it was an evening prayer meeting. Suddenly a gang of men showed up at the back of the church and let us know they were moving into the community and would be taking over. When the pastor went outside, they beat him up. My husband also went outside and about then I thought okay I have a gun and I did-- an automatic that I slide the safety back on (I don't own a gun that looks like it) but when I went outside with it, I realized the drawback I would face in dealing with these men as unless someone threatens you, you don't have a right to legally use a gun against them and they could grab it and turn it on you. It's why I mostly consider (when not dreaming) the only real place a gun is safe to use is my own house... and on wildlife if they start to attack me. I had one on my hip for a walk up our road just this week-end. Using it though on people is a tough call even if a person feels threatened as if wrong, you end up in jail and maybe hurting or killing someone without cause.

At any rate, Arizona had the right to carry for years. A lot of women had them in their purses before they went to the concealed weapon permit as has Oregon. I don't know why they left behind the permit as it seems a logical compromise with some training and background checks; but you know the crooks have always carried them and the law won't stop that whatever it might be.

Darlene said...

*Rain - My point in a workman coming into my home and shooting me was made in relation to some nut reading my post and wanting to get even. Of course murder can happen anywhere and responsible gun owners will object to the crazies having easy access. Now it's open season with no background checks or training.

Darlene said...

*Rain - Oops! I meant responsible gun owners won't object to background checks, etc.

Rain said...

Well just keep in mind that Arizona had such a law allowing carrying without permits for years. The people I know who do carry are obviously all law abiding citizens and they only carry because they know that there are many out there who are not and they are armed. If they could really take away all guns, it'd be different but they cannot and never will be able to; so that leaves only law abiding people without them. The wild ones always had them and won't be stopped whatever laws you pass. I understand your concern but the genii is out of the bottle where it comes to guns. Knives can be just as deadly not to mention bombs. The problem is the violence of our time where people use weapons to settle scores. When the rancher in southeastern Arizona was shot, he had weapons with him. They didn't do him any good because the honest person doesn't shoot first. If we can do something about violence and the anger we are seeing in our culture, that's where our best hope lies. I don't know how we do that. There are a lot of places in Arizona, backwoods places, where I'd not go without a gun but I also know it's not really going to protect me in a lot of situations. Upsetting times.

Darlene said...

*Rain - Your points are well taken. I still maintain that automatic weapons have no business in the hands of ordinary citizens. Background checks should never have been stopped. If done properly they would, at least, keep guns out of the hands of the mentally disturbed. The gun show loophole is the way that the insane man got a weapon to massacre the students at Virginia Tech.

And yes, violence can come in many forms, but a knife cannot kill 32 in a matter of minutes. And very few have bombs; which are the worst weapon of all.

Rain said...

Unfortunately thanks to the internet the ability to make bombs is a lot easier to do than it used to be. I don't favor allowing citizens to buy assault rifles but it's not likely to change anytime soon. We are in a very violent era.

The argument that is being used is that someone with a gun can end a psychopath's reign of terror and it has happened that way. In Oregon there was a guy starting to shoot people in a mall (several years back). A man with a gun was able to pin him down until the police got there saving more from being killed. But that was a trained person and usually when someone does successfully stop something like that church shooting, it was someone trained using weapons who did it. Oregon has a concealed weapon permit and limits where guns can be carried. I personally think the concealed weapon permits are good compromises and don't know why Arizona left theirs.

Darlene said...

*Rain - I can't argue with that. The key word is 'trained' as we both know.

Rain said...

It's unfortunate that we live in such a violent world where someone can be angry with us for how we drove and take a shot (has happened up here). Carrying or not carrying won't prevent that and only people learning better anger control. It seems we are going the opposite way from that though.

Darlene said...

*Rain - Sad how much hatred and anger there is in the world.

Rain said...

Watching the nutcases on the Capital Mall was disillusioning. 'I must carry my gun to protect my family' from what exactly? They have no idea but they want to carry a gun everywhere. To me I support the right to carry a gun but am very comfortable with society deciding there are some places guns are not allowed. Those people have no idea of boundaries or degrees. They are the reason we could all lose the right to have guns.

Darlene said...

*Rain - Thanks for adding a great comment too this post.

K. said...

It's important to remember the context of the Second Amendment. The country had just fought a war to liberate itself from what it saw as an oppressive monarchy, which is undoubtedly the form of government referred to by New Hampshire, et. al. Also, as you imply, the amendment was written before the invention of revolvers and repeating rifles, never mind automatic weapons. It's hard to believe that the authors of the Second Amendment saw the country as armed camp being the sure road to liberty.

Incidentally, Madison thought the Bill of Rights was unnecessary. But, he was unable to secure enough signatories to the Constitution without the promise of one.

Darlene said...

*K. - Yes, the context was one of the reasons that I do not believe that the framers meant to give every individual the right to bear arms. I believe they meant the literal interpretation that those who would comprise the Militia would have that right. There was no standing army at the time.

Kay Dennison said...

I do believe in the right to bear arms. I don't own a gun but I grew up in a house with them and knew it was worth my life to touch them. I don't see myself ever owning one. My brother has guns --no surprise there with his being in the military so long. When my nephew turned 12 he bought him a gun for hunting and the NRA's safety class. He did the same with his second son. Unfortunately, most people don't own guns responsibly and that is the biggest problem for me.

As for myself, I don't own one despite that some friends think I should as a woman alone in the city. My "weapon" is a Louisville slugger. I figure I can swing it and hopefully slow down an intruder so I can get help.

Am I naive? Probably.

I am more scared of what the crazies on the right are doing and people like Sarah Palin telling them to reload.

Darlene said...

*Kay Dennison - I agree that guns have a place for hunting and, perhaps for self protection. It is the loose gun laws that bother me. I think gun ownership is a tremendous responsibility and should be treated as such.

As for my own protection, I am too weak now to do any damage and an intruder would probably take a gun from me and use it on me. I rely on my panic button to summon help.

janinsanfran said...

I'm not against guns for rural people who hunt, but guns in big cities seem crazy to me. We're too close together and it is always the criminals that have the big armament. In cities, we have no option but to make the social controls that go with proximity work.

I'll recognize an individual right to own guns under the 2nd Amendment quite happily: front loading muskets and primitive rifles from the late 18th century would be fine. An individual right to own modern automatic weapons seems just wrong to me.

Stopped by to say I've so sorry your state will now be the target of every anti-racist activist in the country what with the new law authorizing the police to stop and question the citizenship of anyone suspected of being Latino.

Darlene said...

*janinsanfran - I, too, am sorry that we have such idiots in the AZ state govt. I will be writing my next post on this.