El Borak's Myopia

El Borak's Myopia

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That's what usually happens

A mock Supreme Court presages the real one:

One jurist challenged Johnson, “I can’t defend myself in my own home in Washington, D.C.?”

“We are in the Green Zone here on Capitol Hill. Unfortunately, we are in the Green Zone,” the litigator replied drily, alluding to a heavily defended area in central Baghdad. The rest of his response was nearly drowned out by the audience’s laughter.

The evening was punctuated with humor as advocates risked arguments that would be unthinkable in the real Supreme Court. The mock justices made no attempt to camouflage their thinking and fired their own questions and comments at the defense lawyer from Brooklyn.

“Can you cite any case at all that supports your position?” the presiding justice, Hon. George Bundy Smith, asked Kamins.

There was a slight pause. “Other than Emerson, and the supporting …” Kamins hesitated a moment before drawing his argument once more. “Gun control is the elephant in the room,” he said. “The Second Amendment gives the right to self defense. This prohibition is unconstitutional because it bans all weapons of any type” inside the home, Kamins said.

Then the Supreme Court on Washington Square did something unusual. After a brief, collegial discussion, it issued a unanimous decision upholding its Miller precedent with virtually no commentary. (Although one judge, Joseph Wayland, initially suggested that there is an individual right to bear arms and that the “ban” must satisfy strict scrutiny.)

The Miller decision was the 1939 decision in which the Supreme Court decided the Second Amendment didn't mean what it said, and that the right to own and carry weapons was somehow a "collective" right rather than an individual one.

Look, Second Amendment adjudication is not all that difficult; in fact, it takes a legal degree and years of training to be able to accurately misread it. But the reason it is seldom properly adjudicated is that it is, bar none, the most radical of all the amendments: the Second Amendment protects your right to oppose your own government with force.

The amendment itself is fairly straightforward:

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.

If it sounds kind of funny at first, it's because we are not used to reading 18th Century English, with its odd capitalization and punctuation, so let's drop the capitalization as well as the first and last comma*.

What we get is this: "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."

The first phrase declares the purpose of the Amendment, "BECAUSE a well regulated militia, etc.," but we have a few definitions we have to make first in order to allow us to put it into context.

The most important being "militia," I suppose, for which definition we will go to the constitution of my own state, Kansas**: "The militia shall be composed of all able-bodied male citizens between the ages of twenty-one and forty-five years, except such as are exempted by the laws of the United States or of this state." In short, the militia is and always has been "the people," the individuals who live in that state, who are able and willing to bear arms. It is not the army, it is not the national guard, it is simply every able-bodied male presumed physically able and willing to take part. Those who wrote Constitutions a century or two ago would not have dreamed of pressing women into military service***, but we'll just have to forgive them for that shortcoming. They lived before Gloria Steinem.

The second question concerns what it means to be "well-regulated." It does not mean what we mean by "regulation" today, that the Federal government controls it. To regulate something means to make it regular or effective, which may require government intervention, but as Hamilton noted in Federalist 29, "little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year." We are talking about no more than making sure people have a basic understanding and training in the use of their guns.

So what we have so far is, "Because an effective, armed group of able-bodied citizens is necessary for the security of a free state," with "state" in this case meaning "a politically unified people," which could be a specific state or the whole nation****. We'll call it a "country."

One can always argue whether it's true that a free country is better kept free by arming its citizens or rather by outsourcing its security to professionals, but that's what the words of the first clause state.

Now we come to the one comma left, and because we have a because, therefore we need a therefore: "Because an effective, armed group of able-bodied citizens is necessary for the security of a free country, therefore..." Therefore what? Therefore the right of the people to keep and bear arm shall not be infringed.

Four words to deal with here, and no, "people" is not one of them. Since the people keeping arms are the same as the people of the militia (which is why they are keeping arms), we have already defined that. Think of it as a two-fer. Rather they are "keep," "bear," "arms," and "infringed."

To keep: It's actually a very easy word. First definition: "to hold or retain in one's possession; hold as one's own." In short, we're dealing with the individual's right to own and possess weapons.

To bear: That one is rather vague, but I suspect that we will get no argument if we propose that definition 12, "to carry, bring" is what is in mind here. After all, one does not "suffer" weapons nor does one "birth" them.

Arms: "weapons, especially firearms." Obviously this is what is being talked about. But what is lacking from the definition is "sawed-off shotguns" as per the Miller case or "handguns" per the DC gun ban, all the nits the judiciary likes to pick. We are talking about weapons as a class, especially firearms, and either you have the right to own and carry them all, or you do not. The amendment makes no distinction, nor should the court (but they will, just watch).

Finally, the word "infringed." It's a tougher word, but it generally carries the idea of trespassing where one has no right, e.g. copyright infringement. "Shall not be infringed" is saying, "Shall not be trodden up, shall not be suppressed, shall not be breached, trespassed upon, or invaded." To put it positively, "shall be respected or deferred to," and since the Bill of Rights is a restriction on government, we'll add, "by the government."

OK, so now we have our definitions, let's put it all together in 21st Century English:

"Because an effective, armed citizenry is necessary for the security of a free country, the right of each person to own and carry firearms shall be respected by the government."

Now, I submit to you that when the Second Amendment was passed, there was not a single proponent of the Bill of Rights that would oppose the above. That is exactly what the Second Amendment meant. There is no need for "strict scrutiny," there is no need for three-pronged tests, judicial bypasses, or differentiation of weapons classes. There is no "in public" clause, nor a 1000-foot buffer zone around airports, schools, or churches, nor an acceptible limit on the number of rounds that can be fit into a magazine. The Amendment, which I mentioned before was the most radical, says plainly that freedom is predicated on an armed populace and the government cannot step on that.

But since freedom is most often grabbed by governments, that is the organization the people are primarily armed against*****. And if you think that through for 2 seconds, you'll quickly realize why the Supremes will likely come to precisely the opposite conclusion I do - or no conclusion at all - even while they take 20 times as many words to do so.

UPDATE: Magician's Nephew presents an even better interpretation than mine in the comments: "Because an effective, armed citizenry is necessary for the security of a free country, the government may not restrict in any way the right of each person to own and carry any kind of weapon."

Word to the Supremes.

* Now lest you think that's subjective of me, I suggest you read Section 17 of Article I of the state constitution of Bethie's beloved state of Hawaii, which is obviously copying from the national, but updating the English.

** And I'm choosing Kansas because I want to spread it around here. I could cite about 40 other states that say nearly the same thing.

*** Keep repeating "Everyone before me was a moron."

**** the Greeks even had city-states, which always confused me as a tiny little historian.

***** which is what the American Revolution was fought against, although "Indians not taxed" probably figure in there as well.

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