Of Madison, Confucius and Scalia

Jeff Koterba's commentary on the Second Amendment lacks a bit of subtlety, but it does encapsulate some of the thinking that went into the document, and that's been absent from a lot of the commentary on the topic.

The First and Second amendments are an odd pair, since it seems that nobody who supports one can speak rationally about the other.

Confucius said, "I have yet to meet a man who could perceive his own faults and bring the charges home against himself," and he might have been speaking specifically about this topic.

It's frightening to see the Walter Mitty/John Wayne fantasies of the fringe element on the right, the foolish notion that, against all experience and history, a people universally armed to the teeth will live in peace.

And it's daunting to realize the extent to which their paranoid view of the world has been inculcated not by violent video games half so much as by the vogue for police dramas on TV -- which we know increase unrealistic perceptions of personal danger -- and particularly as these shows have become more and more violent, morbid and one-dimensional.

And popular.

If some Orwellian government had a cunning plan to plant fear in the minds of the public, they could not come up with a better plan that simply to flood prime time with the various elements of the CSI and Law & Order franchises, together with variations on "24" and its ilk.

Add the perverse "stranger danger" messages we send by setting up fingerprinting booths at malls and county fairs to get all our children registered with Big Brother against the highly unlikely danger of abduction and it would be surprising if we did not come to the conclusion that danger lurks around every corner.

But at least the Chuck Norris/Steven Segal/Bruce Willis solution is being dismissed as impractical, if not totally absurd, on the level where some form of rational discussion is supposed to take place.

However, there remains a lack of historical perspective that can't simply be dismissed as lunacy, and that includes both the ridiculous-but-pervasive right-wing notion that the Second Amendment was established in order to encourage and enable armed insurrection, and the willfully-blind left-wing view that the Founding Fathers would not have left things so open-ended had they foreseen any weapons beyond muzzle-loading flintlocks.

That latter point being where the inability to see your own flaws comes into play: The Founders also wrote the First Amendment in an era of quill pens and handset type. There have been far too many editorial cartoons that make the point about muskets, but are drawn on a Wacom tablet, colored with Photoshop and posted on the Internet.

Come on. You're smarter than that.

Koterba summons the concept of original intent with an intentionally a-historic conversation, and in so doing, touches on the plain, self-evident truth that no sensible lawmaker would expect there to be a complete lack of restriction.

Which brings us back to Confucius, since each side sees his own position as blameless and the other side as completely wrong. There's nothing the matter with restricting that other amendment, but mine must remain sacrosanct.

But despite the protests against interpretations that didn't go as desired, the Constitution remains a "living document," and anger against "activist judges" should be leveled as much against one wing as the other.

In this case, we managed to trundle along as a nation for two centuries with the understanding that the Second Amendment had, as a central tenet, the concept of the "well-regulated militia."

Then, in 2008, the court suddenly discovered -- by a vote of 5-4 -- that this was not the case, and that the Second Amendment was unique in that, of the original amendments known as the Bill of Rights, and all amendments since added to the Constitution, it is the only one with an introductory clause that suggests more or less what the topic is, but with no intention that the clause be seen as impacting the words that follow.

It's an interesting opinion, and Scalia is eloquent, as always, but he is too eager to dismiss Madison's careful phrasing of an early draft of the amendment, intended to acknowledge that Quakers (for instance) are religious pacifists but are not vegetarians. They needed guns for hunting but would not, by religious belief, use them for self-defense and thus should not be required to join the militia.

Scalia strains to insist that "bearing arms" is exclusively meant for the purpose of confronting human aggressors, rather than in the sense of having them in order to hunt, and cites a historian's chance but useful observation that Quakers would surely have had trouble resisting the urge to grab a gun in the face of personal danger.

We ought not to base law on hypotheticals.

A Jew in a lifeboat might well eat ham, but it wouldn't amount to a denial of his orthodoxy, and Scalia's reasoning reminds me of the (probably apocryphal) case when Lytton Strachey was attempting to claim conscientious objector status in the First World War and was asked, "What would you do if a Hun were raping your sister?" to which absurd question the gay writer replied, "I would endeavour to interpose myself between them."

Scalia's biased parsing of history, religion and logic notwithstanding, the concept of permitting ownership of guns without membership in the militia, but within the concept of "a well-regulated militia," is not without parallels.

You can be a conscientious objector to the draft, but you can't simply fail to show up when summoned: You have to register and you have to make and prove your claim. I would suggest that a state could, under the founders' stated intention, put the very same requirement on a pacifist who owned a gun for hunting purposes and that the Second Amendment is about the right of state governments to regulate firearms in the manner they see fit.

And I would be wrong, by a vote of 5 to 4.

Today.

The Founders' intentions may yet change again, however. Stay tuned.

Comments

[Lost in A**2]

Mr. Peterson, had opposition to the First Amendment come up since I've started following your comments, perhaps you would have evidence against your categorical. :)

I just *love* quoting the Constitution. :) Relevant here are the clauses of Article I, Section 8, that begin with "To declare war," and end with " training the Militia according to the discipline prescribed by Congress."

Right: the Second Amendment is NOT about insurrection. It IS about military-grade weapons in private hands. "Well-regulated" has more to do with training than membership, but who would trust their idiot son with a knife, much less a musket?

But who cares? We've other problems to solve, right?

Today, I'd probably oppose a movement to repeal the Second Amendment, but I begin to think it is the only reasonable course of action, especially in light of the Fourteenth Amendment's application of Federal limitations to the individual States.

[Lost in A**2]

I finally finished reading the three opinions of the Court last night. I am going to have to read them again, but I find that I am more in agreement with the dissents.