Is the Second Amendment guaranteeing the WRONG RIGHT? (Part one)

You think we might be giving “shooting-your-fellow-homosapiens” too much de facto Constitutional protection?

PLEASE NOTE: You may assume that any bold emphasis within a blockquote might be mine.

THE PROTOTYPICAL APPEARANCE OF THE AMERICAN “GOOD GUY WITH A GUN”? ... This image of the Battle of Lexington, inaccurate as it is, could be close to what many of us see inside our heads as to why we all need guns — although, when I was a kid, mine was more like Ralphie’s cowboy daydream from “A Christmas Story” — or maybe a version of that cool Soviet-invasion scenario from “Red Dawn”. (Spoiler for that last one? In the end, the Wolverines, the American teenybopper militia, fails to send the commies packing.) This detail of the engraving of the Lexington battle comes from the U.S. Bureau of Engraving and Printing by Luigi (Louis) Delnoce, based on a drawing by F.O.C. Darley. (Wikipedia / Public Domain)

First off, this is PART ONE of TWO! Yeah, lots of words, but I think it’s an important topic, and probably needs even more words than the ones I’m leaving in. (Also, the following paragraph, obviously, is the “new and improved” version. For the original, click here):

"A WELL REGULATED MILITIA, BEING NECESSARY TO THE SECURITY OF A FREE STATE, THE RIGHT OF THE PEOPLE TO KEEP AND CARRY SEMI-AUTOMATIC PISTOLS OR AR-15-TYPE ASSAULT WEAPONS INTO SCHOOLS AND SHOPPING MALLS FOR WHATEVER PURPOSE, INCLUDING THE MURDER OF INNOCENT STRANGERS AND SMALL CHILDREN, WILL NOT BE INFRINGED."

Too wordy?

Yeah, but for all intents and purposes, this slight tweak of the Second Amendment might be a truer description of the actual right being protected than the one intended.

Maybe it’s American logic to exercise our constitutional right to “keep and bear” firearms by, every now and then, shooting some fellow humans with them? Maybe we figure, hey, what’s the point of owning something designed mostly to shoot someone if you never get the chance to ever shoot someone?

Could there be people out there searching for pretexts to shoot someone?

Okay, no, I know shooting people is not an actual  “protected right”, although we may be inadvertently guaranteeing, thanks to the laws of “cause-and-effect”, that all those people should eventually get shot?

In fact, to add some meaningful specificity to it, here’s an update of that old NRA axiom:

• “GUNS  DON’T KILL PEOPLE, PEOPLE  (BUT ESPECIALLY THE ONES WITH GUNS) KILL PEOPLE!”

Think of it this way:

Imagine, by snapping your fingers, every gun ever held by anyone in history, as they were about to shoot someone to death (including themselves), suddenly — poof!! — their gun changed into — well, okay, for example, a banjo??

Just think to how many lives could have been saved!

BTW: Okay, even if you’ve never seen the movie “Deliverance”, PLEASE click this “banjo” link, get into full-screen, skip the ad, then enjoy! — But when the scene is over, either REPLAY it, or else, QUICKLY get out of full- screen— and then, PLEASE, don’t forget to come back.

But additionally, it would have made it a lot easier to keep all those people from being shot and wounded if someone had NOT written into our Constitution that people have a RIGHT to own and carry lethal playthings

... that are designed for pretty much no other purpose than to shoot people — and hopefully to death! — and, hopefully, in some cases, for some stupid reason — making the maximum mess of human flesh and bones in the process. (Click this Washington Post link if you have the stomach for watching animations of what an AR-15-type projectile does to a child’s insides.)

Furthermore, if it weren’t for WE-the-people giving YOU your constitutional right to own a firearm that you mostly own only because you grew up in a part of the country that has a “gun culture”, where most every “law-abiding citizen” owns at least one, and is not uncomfortable around guns ... then all those NON-law-abiding people who use guns for evil — the very people you think you need a gun to protect yourself from! — wouldn’t find it so easy to get their hands on them in the first place.

Anyway, these gunmen (and now, even gunwomen?) seem now to be coming out of the woodwork like cockroaches, so if this latest fad hasn’t reached your town yet, just give it a few of minutes.

FOR EXAMPLE!!

Just the Wednesday before my writing these words, a 24-year-old man, possibly with mental issues, entered the Atlanta waiting room of my doctors (fortunately, I wasn’t there at the time) and, reportedly being upset at being turned down for a prescription renewal, shot five women, then escaped by carjacking a vehicle, and was captured hours later north of the city.

One shooting victim, a CDC employee, died, while the others were hospitalized, some in critical condition.

Technically, some experts call this a “mass shooting” rather than a “mass killing”, since fewer than four people died, but it did make the list of national “active shooters” du jour on national TV — just one of so many lately that it’s already gotten lost in the memory banks of mass-media consciousness.

Three days later, there was this, the most recent entry (as I write) on a New York Times partial list of mass shootings this year:

May 6: Allen, Texas

A gunman opened fire at a crowded mall outside Dallas, killing at least eight people and injuring at least seven before a police officer killed him, the authorities said.

HAS AMERICA ALWAYS HAD THIS PROBLEM WITH GUNS?

WELL, YES, YOU COULD SAY IT’S BEEN WITH US FOR A WHILE ... Here’s a detail from a larger panel about their easy-access-to-handguns problem back then, published in Puck magazine in December of 1881, shortly after President James Garfield was assassinated by Charles J. Guiteau (an allegedly insane character who looked somewhat like the customer on the left) and just two months after the so-called “Gunfight at the O.K. Corral” in Tombstone, precipitated when Marshal Virgil Earp “made the decision to enforce a city ordinance prohibiting carrying weapons in town and to disarm the Cowboys.” (Frederick Burr Opper via Wikipedia / Public Domain)

IMMEDIATELY FOLLOWING EACH OF THE MASS-SHOOTINGS OVER RECENT DECADES, IT’S BEEN HARD NOT TO NOTICE HOW QUICKLY SECOND AMENDMENT SUPPORTERS CONTEND THAT IT’S TOO SOON  TO TALK ABOUT THIS, WE NEED TO WAIT UNTIL AFTER THE POLITICS  DIES DOWN,

... and then, if they don’t start changing the subject from guns to mental illness, they scamper into their own mental bunkers to escape omnipresent echoes of liberal anguish at our inability to put a stop to these continuous goddam shootings, in a land so renowned for its unlimited possibilities of correcting its own faults.

But in due time, the smoke settles and the focus changes to some other outrage — alien hordes at the Southern border? CNN allegedly lets Donald Trump “host” a Town Hall? Whatever — and meanwhile, countless journalists continue to publish whiney sentences similar to the one that I’m writing right now.

And why do we, at this point, always find ourselves reiterating what is often claimed (although incorrectly) to be Albert Einstein’s “definition of insanity”?

Still, there may be something to that quote. Maybe all this time, we “anti-gun-nut” gun-nuts have been aiming way too low.

Maybe it’s time to finally break the circle and seriously consider doing the unthinkable.

THE QUESTION MODERN-DAY LEGAL EXPERTS TRADITIONALLY ASK ABOUT THE SECOND AMENDMENT IS, WHAT THE HELL WERE THOSE FOUNDERS REALLY THINKING?

Specifically, why would they even mention a "well regulated militia, being necessary to the security of a free state,” if their intention was not to populate state militias with members who brought their own weapons?

Yet, for one thing, James Madison’s first draft as proposed to Congress in June of 1789 seemed to hint at his original intentions.

In fact, the whole thing was about the militia, including a phrase, later deleted, allowing those from religions who rejected guns (Quakers, for instance) the right to be what we now call “conscientious objectors”, avoiding being drafted into militias.

Examine closely Madison’s original thoughts here: 

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”

In fact, this focus on the militia had been our interpretation for centuries until 2008, when the Supreme Court changed America's official mind:

In 2008, the U.S. Supreme Court in District of Columbia v. Heller held (5-4) that the Second Amendment guarantees an individual the right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, including self-defense within the home.

How they arrived at that is a good question ... but whatever.

Let’s temporarily ignore that for now, as there may be an even more important question here that most everyone has been missing all along:

Suppose, just for argument’s sake, we decided to delete any mention of the recently-ruled superfluous militia from the amendment. Where would that leave us?

For one thing, the amendment would stop being a pragmatic necessity, designed to help us protect ourselves from invaders and whatnot, and it would become something else.

Because of the Supreme Court’s 2008 Heller vs. DC “reinterpretation” of the meaning of the Amendment renders its decree no longer contingent on the existence of militias of citizens bringing their own weapons, this would mean the amendment would be an outright claim of the existence of an actual “GOD-GIVEN RIGHT” to own and pack heat!

Seriously, think about that! How could that be true?

Okay, I don’t literally believe that God declares natural laws of any kind, but if I did, it would have to be a law that, say, was presented to Adam and Eve in the Garden of Eden — not that I really believe that sort of thing happened either, but it is part of our “founding mythology”, so just for argument’s sake, we need to pretend:

“HEY, GOD? WE NEED TO TALK! ... As you can see, my wife is pretty upset about your new pronouncement concerning ... um ... Well, we don’t really get  it, but something about our ‘arms’?” (Charles-Joseph Natoire via Wikipedia / CC0)

Adam: God? You there? It’s Adam.

God: Yes, Adam. What’s up?

Adam: Um ... Okay, Eve and I were just talking about this new law of yours, the one about the “arms”?

God: Sure! What’s the problem?

Adam: We were just wondering what it means? For example, aren’t we already allowed to “bare” our “arms”? We’re just a bit confused. You’re not now thinking of having us put all these silly fig leaves, those plant-things that cover our ... well, okay, our “you-know-whats”? ... but now we’ll have to put them all over our arms as well?

God: Okay, listen, don’t worry about that stuff right now. It’ll all make much more sense after I kick you out of the Garden and you someday have to ratify a Bill of Rights.

Adam: Wait, what?!? You’re kicking us out of the Garden?

Okay, enough of that.

But my point is, it’s hard to picture a situation where God would’ve granted unto Adam and Eve, back then, the right to “own and open carry” something that hadn’t even been invented yet.

As for “natural” and “inalienable” rights of any kind whatsoever?

First of all, yes, these were widely-held views back in Thomas Jefferson’s day when he wrote the Declaration of Independence — what with his entitlements of the “Laws of Nature and of Nature's God” — but not everyone back in the Age of Reason thought a belief in them was all that reasonable.

One guy who wasn’t buying it was the philosopher, Jeremy Bentham. This is from Wikipedia:

Though strongly in favour of the extension of individual legal rights, he opposed the idea of natural law and natural rights (both of which are considered "divine" or "God-given" in origin), calling them "nonsense upon stilts".

Okay, I must admit, there do seem to be rights that many of us reference, but it’s not  because they are “God-given”, it’s just because so many of us have arrived at a certain consensus on them — a social contract that many, even most of us, theoretically at least, agree upon.

But, in fact, they are not immutable or inalienable rights, they are just our opinions, collectively and individually. But if they were really immutable, people would never change their minds.

But something worth noting? No matter what your affiliation, your right to bear arms is not found in your Bible.

BUT JUST FOR GIGGLES, LET’S BACK UP TO THE BENTHAM LINK TO “INDIVIDUAL LEGAL RIGHTS”.

When you click it, you’ll land on a Wikipedia article entitled, “Individual and Group Rights”, reminding us there are other assumed rights rather than just “individual” ones:

The United States Declaration of Independence states several group, or collective, rights of the people as well as the states, for example the Right of the People: "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it ..."

My point?

Yes, the Supreme Court may pronounce the bearing of arms an individual’s right, protected by the Second Amendment, but should we not also have protection of the collective right of the American people at large to insure that their country is NOT one where tens of thousands of them are shot and killed and wounded by guns every year?

For some reason, states are allowed to pass any law they want to ban smoking in bars and restaurants and such, all in the name of promoting public health, but then again, these laws are popular, maybe because only 12% of Americans smoke (back in 2021, at least according to Statista) — which also means that 88% don’t!

But you know what? According to surveys, only 32% of Americans own guns, which, I calculate, means about 68% of Americans don’t!

So whatever happened to majority rule?

But it seems that whenever our legal system stumbles across two rights that conflict, it generally resolves the problem by deciding which of them serves the “greater good”, so what might serve the greater good in this case is for the law to remember that, in America ...

Just as the people who DON’T SMOKE get their way because they outnumber those who do, then those who DON’T OWN GUNS should be granted similar privileges because they outnumber the people who do!

But anyway, just in case you haven’t already figured out where I’m going with all this?

I’M CALLING FOR AMERICANS TO START THE PROCESS OF REPEALING THE SECOND AMENDMENT.

It won’t  be easy to accomplish, but rarely is anything that critically needs accomplishing easy. Also, it may take a long time, so if we want to live to see it happen, we should start now, and just keep plugging away. (No pun intended.)

And yet legal experts, even some on my side of the debate, caution us to leave the amendment alone, lest we rile up all the pistol-packing right wingers.

Let’s back up to 2018.

Retired Supreme Court Justice John Paul Stevens posted a tiny Op-ed in the March 27^th New York Times, in praise of surviving Parkland students who were seeking “legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms”.

And here, Stevens offers a novel suggestion, that “the demonstrators should seek more effective and more lasting reform”, suggesting that ...

“They should demand a repeal of the Second Amendment.”

He then added:

Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “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.”

Today that concern is a relic of the 18th century.

STEVENS’ BOLD DECLARATION IMMEDIATELY PROVOKED A CERTAIN AMOUNT OF THOUGHTFUL PUSHBACK.

Michael Waldman, a Second Amendment expert and president of the Brennan Center for Justice (disclosure: I donate to his group each year, and recommend that you do, too!) argued on the Brennan website that “a repeal effort would be deeply misguided. It’s politically unwise and legally unnecessary”:

The Constitution is not a bar to sane gun legislation. A broken political system and a failure of will in Congress and statehouses are the culprits, not the words scratched on parchment two and a half centuries ago.

There was also concern from everyone’s favorite (including mine) liberal Harvard Constitutional Law professor, Laurence Tribe, a long-time supporter of gun control laws but who, also in 2018, warned in the Washington Post, “The NRA’s strongest rallying cry has been: ‘They’re coming for our beloved Second Amendment’”:

For years, that lobby’s most effective way to shoot down proposed firearms regulations has been to insist, falsely, that any new prohibition would lead to the eventual ban of all  firearms.

He was right about that.

Just as overturning Roe v. Wade didn’t automatically illegalize abortions nationwide, nor would repealing the Second Amendment have us all surrendering all our guns.

In both cases, what’s legal or not would be put into the jurisdiction of the states.

But Tribe continues:

It is easy for those who revile our lax gun laws to lose sight of how many Americans cherish the right of law-abiding citizens to keep guns at home for self-defense or hunting.

YEAH, BUT THAT CUTS BOTH WAYS.

While our side might underestimate how many law-abiding citizens there are who disagree with us, I’d also bet there are even more of them who maybe don’t realize that we, the gunless, outnumber gun owners, by two-to-one!

BUT HERE’S THE THING ...

Exactly how does America go about doing this?

Maybe this:

FIRST OF ALL — ODDLY! — GOOGLE CAN HELP YOU FIND SCADS OF ORGANIZATIONS UPHOLDING DEFENSE OF THE SECOND AMENDMENT, BUT AFTER HOURS OF SEARCHING, I MYSELF COULD NOT LOCATE EVEN ONE URGING ITS REPEAL!

(IN FACT, GOOGLE GETS CONFUSED WHEN I ASK FOR THAT AND THEN PROCEEDS TO GIVE ME NAMES OF LOTS OF GROUPS THAT SUPPORT THE SECOND AMENDMENT!)

SO MAYBE THERE AREN’T ANY?

And what’s really odd about that is that a vast majority (70%) of Americans told an Ipsos poll back in June of last year that “the higher priority should be enacting new laws to reduce gun violence” rather than “to protect the right” to own guns.

Why such hesitancy for the majority to act on its own beliefs? Not sure, but a safe bet might be to assume the enthusiasm gap favors the side — the 32% minority! — that owns the guns.

But the thing is,

MAYBE SOMEONE NEEDS TO START A SUPER PAC OR NRA-TYPE ORGANIZATION TO FUNNEL LOTS OF CITIZEN DONATIONS TO ELECTED OFFICIALS WHO FAVOR REPEALING THE SECOND AMENDMENT!

IT NEEDS TO BE A BIG AND POWERFUL GROUP, BIGGER THAN THE NRA, BIG ENOUGH TO GET THE MAJORITY OF EVERYONE THINKING WITH  US AND WORKING TO CHANGE THE DIRECTION OF THE CONVERSATION ON THIS ISSUE!

I nominate Jon Stewart to be part of it, either to run it or even just be its spokesman!

Click here to see Jon spotlighting a great idea of reducing shooting deaths, including those of cops, by keeping guns away from domestic violence offenders, and click here to hear him trying to convince Oklahoma State Sen. Nathan Dahm that his Second Amendment purism is making it harder for police to manage violence on the streets.

Hey, go ahead, click on those links! “It’ll be wild!”

But no, I’m not forming a super PAC, although I wouldn’t mind brainstorming with anyone who considers going for it. If that includes you, please leave me a note in the comments.

Okay, off we go.

---

BY THE WAY?

THIS IS JUST PART ONE. I PLAN ON BEING BACK OUT IN A FEW DAYS WITH PART TWO — MAYBE LONGER THAN THIS ONE, WITH ARGUMENTS THAT DIDN’T FIT INTO PART ONE ON WHY THIS HAS TO BE DONE.

ALSO:

Although too few readers ever do this, if you really want to take full advantage of this newsletter, you should click on the links! Sometimes they’re there to document where I got my info, sometimes just for fun or even mind-blowing enlightenment, but sometimes to just add more to my argument that I didn’t have room for in the copy.

UPDATE: Click here to go to PART TWO.

Monday, May 15, 2023