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Have You Seen the Musket Man?

Over the last couple weeks, I have a number of friends—and probably at least at one point, even my wife—who have wanted to disown me, or “unfriend” me, or at least get me to STFU. They’d kick me out of the “progressive left” club, if I were part of it.

But from where I sit, these people strike me as running strictly on emotion, and not even willing to consider that their short-term goals are not going to accomplish what they want, and that both their short-term and long-term goals are unconstitutional and contrary to the rule of law.

In this post, I explain why.

In case you didn’t already figure it out, I’m talking about guns. And my friends and former-friends are talking about unicorns.

Okay, not unicorns exactly. If you ask them, they’re talking about “gun control.” But “gun control” in a gun-rich environment like the United States is about as mythical as a unicorn.

So, same thing.

The Militia Myth

In furtherance of the mythical salvation to be found in “gun control,” many of my friends, and former-friends, suggest that there is no individual right to own guns unless one is part of a militia. Regarding that, [1] From where I sit, these folks are over-reacting, infantilized, and (therefore?) under-thinking their positions. In my mind, they're inadvertently working to make the world a worse, less-free place, and not a better—and absolutely not a more-free—place (which is why I suggest they have a commonality with right-wing fascists).">the United States Supreme Court has stated of the Second Amendment’s preservation of the right to keep and bear arms,

we find no evidence that it bore a military meaning.

Okay, say the unicorn-lovers. Even if you do get to own guns without being in a militia, you’re only allowed to have muskets. Or maybe, some say, you can have more than a musket, but you don’t get to have highly-advanced, modern weapons, because those weapons did not exist when the Second Amendment was ratified.

This is, to put it bluntly, pure horseshit. As the United States Supreme Court noted in District of Columbia v. Heller [2] :

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

And, to anyone who knows how to read things written in English, it was horseshit before the United States Supreme Court said that it was horseshit.

In 1846, the Georgia Supreme Court noted,

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree.

Until today, I’ve actually never read the United States Supreme Court decision in Heller. When it comes to constitutional issues, I don’t pay much attention to the Supreme Court—you know, kind of like they don’t normally pay much attention to the Constitution. But many of my friends, and former-friends, seem to think that the Constitution does not say what the Constitution says, and some of them place more value on what courts say about gun control, because they believe that courts support gun control without limitation.

They can be forgiven for believing this, because despite the words of the Second Amendment, many infringements on the right of the people to own weapons have actually been given the stamp of approval by our wayward, and frequently lawless, courts. In fact, before they got it partially right, the United States Supreme Court got it completely wrong in the case of United States v. Miller.[3]

In Miller, the Court interpreted the right to own guns as a “collective right.” The Court accepted the illogical, unhistorical, and ungrammatical, idea that the Second Amendment only allowed guns so that militias could exist. Thus, they said, sawed-off shotguns could be regulated, because they had nothing to do with the preservation or efficiency of a well-regulated militia.

In other words, militias will continue to exist just fine without sawed-off shotguns. Of course, this is question-begging, because these days anyone who joins a well-regulated militia is most likely going to be assigned some kind of gun that kills with much more efficiency than a sawed-off shotgun, or any other weapon an ordinary non-militia person might own.

Sadly, the current USSC, not wishing to overrule “themselves”—i.e., endorsing the fiction that the earlier “Justices” are mere backwards extensions of today’s “Justices”—would seemingly endorse this idea, notwithstanding their cogent arguments regarding whether gun ownership was limited by the “prefatory clause” to those who were members of militias. Their argument is a variation on the argument that they had already declared bogus: these modern weapons, not in existence at the time of the Second Amendment, would not really be all that useful to a militia. They think their illogical argument is not impaired because Miller “stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”

They might as well just come right out and say that because Miller does not discuss the type of infringement that they are discussing in Heller, the infringement endorsed by Miller does not count as an infringement. Only certain kinds of infringements count as infringements: infringements on people are infringements and not okay, but infringements on the armsthey are allowed to keep and bear are not infringements, unless some future judge says so.[4]

I’m willing to bet that a militia wherein everyone had a sawed-off shotgun could probably do more than its fair share of damage. But, aside from that, the whole point—indeed, almost the entire opinion consists of this argument—was that the right to bear arms was not limited to the carrying of arms in a militia, nor was this “prefatory clause” a limitation on the right of the individual person that was not to be infringed.

The point is that despite the Second Amendment’s ordaining that the right of the people to keep and bear Arms shall not be infringed, the Supreme Court decided that, at least as to this particular sub-class of Arms, those rights could be infringed. Because, although a sawed-off shotgun might be more useful in many situations than a regular pistol, such as militias could benefit from, militias couldn’t benefit from having sawed-off shotguns. The Court thereby attempts to have its cake, and eat it, too.

Makes sense.

Well, actually, it doesn’t. And even the Supreme Court recognizes this:

Read in isolation, Miller‘s phrase “part of the ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.

The Court, however, decides that the way to get around this is by saying, essentially, that we have to recognize that the colonists who ratified the Bill of Rights did not have machineguns, or sawed-off shotguns.

It’s almost as if the Court thinks that the Second Amendment limits constitutionally-protected gun ownership to muskets! Or, as has been said,

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.

But, as they say, even a blind squirrel gets a nut once in a while. Or, as I like to say, even the United States Supreme Court has to get things right once in a while. And so the United States Supreme Court in Heller properly found its inner gun nuts—or, as I like to call them, balls—and decided to go with a plain-language reading of the Constitution’s Second Amendment at least on the point of whether one had to be in a militia in order to own certain guns, with individual weapons to be approved by “future judges.”

The “White People Don’t Want Black People To Own Guns” Myth

Another argument I’ve seen offered for why we should not continue to support any interpretation of the Second Amendment that I’ve heard goes like this:

The Second Amendment was put in place to make sure that white people had the necessary means to maintain control over their black slaves. This is why the Amendment says “State” instead of “Country” when it talks about militias. These were the slave-hunting militias; the brownshirts, the jackboots.

It is irrelevant whether this is true, or not true. Because one thing that absolutely is true is that it most certainly was not the reason Northerners supported the Second Amendment. It is most certainly not the only reason for the Second Amendment. Moreover, from the conversations I hear, it would not surprise me to learn that there are more white people who don’t want anyone—black or white—to own guns than there are white people who don’t want black people to own guns.

And, guess what? As far as constitutional law is concerned, doesn’t matter what white people want for black people. As Heller notes,

[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.

During a debate over the need for the Fourteenth Amendment, Nye said, in 1866:

As citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.

The point of that, by the way, is this: yes, early gun laws may have come about to ensure white people could control black people. Guess what that was called? “Gun control.”

Numerous courts, and legislatures, recognized that it was unconstitutional, and blacks were lawfully allowed to own guns. That there were some people who wanted to ensure that they could continue to own guns to keep blacks down at the founding of the nation—again, assuming just for the sake of argument that it was true—does not matter. At that time, despite the stated high moral purposes of the Constitution (“all men are created equal”), blacks were enslaved. We don’t therefore advocate for throwing out the entire Constitution.

And, after slavery was abolished, the Constitution, including the Bill of Rights, lawfully protected people regardless of skin color. This included allowing blacks to own guns.

And they don’t even have to join a militia!

Changing the Law to Allow Infringements

There are a lot of people who want to infringe the rights of other people to keep and bear arms. These people, naturally, include the government. After all, as the Tennessee Supreme Court once noted, one reason for individual gun ownership is

keep[ing] in awe those who are in power[.]

In other words, making the government think twice about becoming overbearing, and believing that they can do to the populace whatever they want, because, you know, that populace might not like it, and being a gun owner means having the ability to fight back.

Partly because there are a lot of people who want gun control, and mostly because the government also wants enough control over guns to ensure that the people of the United States cannot do what the colonists of the British Empire were able to do, we have some infringements on the right to keep and bear arms. The courts, unsurprisingly say, “Those don’t count because we have explained why, just because they infringe on the right to keep and bear arms, they aren’t really infringements.”

In other words, “we say that however much it looks like an infringement, we like the result, so we say it’s not an infringement.” It’s like when my wife bakes cookies, and says, “Don’t eat any of these cookies.” Then I eat a cookie, and she says, “I told you not to eat any of these cookies.” And I respond, “I didn’t eat a cookie: I just put it in my mouth, chewed it up, and swallowed it.”

There is, however, a lawful, completely constitutional, unarguable way to make it possible to infringe the right to keep and bear arms. We don’t really think about it, or try to use it, anymore. Part of the reason for this is that we actually do not know, or honor, or value, or own Constitution well enough to recognize that it’s there. Rather, we are largely an illiterate (at least as to the laws of our land), feelz-driven, lemming-like mob. Someone proposes something we like, and we don’t stop—neither we, the People, nor our legislators, and almost always these days not even our courts—to ask any basic questions, like “is this constitutional?”

It’s easier to do whatever we want this way.

But there is another way. A lawful way. A completely-constitutional way to allow the infringement of the right to keep and bear arms. It’s found in Article V of the United States Constitution:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Of course, it’s quite hard to do this. It is supposed to be quite hard to do this.Because it’s only supposed to be done when a large enough portion of our constitutional republic really thinks it needs to be done. It’s not supposed to be possible when an angry, emotional, law-hating group of people decides that they want to deny another group of people their pre-existing rights. Our Constitution was deliberately written to provide the maximum protection possible for freedom, and to keep the government from abridging, infringing, limiting, cabining, controlling, or regulating our rights out of existence.

This difficulty has meant that we really just don’t bother with constitutional amendments anymore. Instead, we ask our legislators, and our courts, to do just as we do: turn a blind eye to the rule of law. We do it because we don’t understand how it can possibly go wrong. We do it because doing things the right way makes it harder to get what we want. But we do it mostly because we’re easily swayed by bullshit, and unable to think things through.

It Isn’t Just Gun Nuts Who Love The Law

In closing, I’m going to let you in on a little secret: I don’t own any guns. Except as a child, when I had a BB gun, I never have. I have held guns. I have fired them in the past. But, the truth is, I don’t like guns. They scare the shit out of me. I get the willies even holding one. A lot of people think, because of the arguments I vociferously put forth against gun control, that I’m some kind of a “gun nut,” or, from those who are less snarky, a gun lover. This has to be true, because why else would I argue so hard against gun control? But, the truth is, I am neither a gun lover, nor a gun owner.

I’m not saying I’d never own a gun. I might, under the right circumstances, like when/if the United States finally collapses, as I think it could. (I don’t know if it will happen in my lifetime, but I’m fairly certain it’s not terribly far away.) If it became necessary for, say, California to secede, and fight the federal government, or another state, I would absolutely find a way to get my hands on some weapons.

But, again, I feel it’s highly unlikely that there’s going to be a need for that in my lifetime.

No, my reason for fighting progressives who push for gun control has to do primarily with what I’ve argued here: it’s unconstitutional. And it doesn’t matter to me if our courts issue confused, and confusing, opinions saying “it’s not constitutional to infringe the right to keep and bear arms, but this law that makes it illegal to own [insert subclass of arms here] does not infringe that right.” It’s still unconstitutional.

You want to make it constitutional to get rid of guns—whether just some guns, or all guns—then change the Constitution.

That’s how it’s supposed to work. And unless that’s how it does work, then we might as well chuck the whole game because, as Ben Franklin said, we have a Republic, if we can keep it.

We can only keep it so long as we honor its foundation, the Constitution.



Footnotes
  1. Explaining the diff between progressives and liberals will have to await another day. Attempts to find a post to link show that there are a bazillion posts which exhibit no real agreement—and certainly none that I found that define what I think is the difference.
  2. This isn’t a law review article: if you want the full cite, Google is your friend.
  3. See footnote 1.
  4. I use this phrase for two reasons. First, the Court disparaged the idea that decisions about gun control should be left to “future judges.”

    A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

    Yet, second, the Court nevertheless leaves to the future—”there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us”—the decision about which infringements of gun ownership are constitutionally-acceptable.

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