Second Amendment Remedies

The tragedy in Connecticut may very well signal a chance for a political sea change on gun control, which only ever happens in the aftermath of tragedy.

The assassinations of Bobby Kennedy and Martin Luther King set the stage for the first meaningful gun control in 1968. The attempted assassination of Ronald Reagan led us to the Brady Law.

The two major obstacles facing gun control advocates are the Second Amendment and the political facts on the ground.

Supporters of gun control tend to use the Second Amendment’s preambular language about “a well regulated militia being necessary to the security of a free Stateto read it out of existence, while gun control supporters take it text as an absolute, when the text itself is conditional.

They are both wrong.  

I rarely discuss the Second Amendment with my friends, because I have the somewhat controversial opinion that the plain meaning of words is exactly that, so the regrettable Second Amendment means people can own guns, subject to regulation. I don't particularly care for that, but I don't like equal representation in the US Senate either, and that's in the text as well.

The Second Amendment says “the right of the people” to "keep and bear arms" shall not be "infringed." It also gives a reason, but the right seems far more extensive than its justification.

First, let us remember that, at the time, “the militia” was defined as every able bodied male.

Some liberals like to dismiss this as language to enable National Guard units, rather than as an individual right, but there really does not seem to be a way to find that such wording does not convey the right of a law abiding individual to "keep" and “bear” (not just "bear", which might arguably just apply only collectively) conventional weapons.

It seems hard for there to be a collective meaning to the word "keep." I note the phrase the "right of the people" is not usually defined only as a collective right anywhere else it appears in the Bill of Rights.

In the First Amendment it says "Congress shall make no law respecting...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

In the Fourth Amendment it says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

In the Ninth it says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. "

Are liberals saying these are only collective rights, and do not apply to individuals?

However, pro-gun legal historian Don Kates has noted that the Second Amendment, like other parts of the Bill of Rights, was intended to incorporate English Common Law rights of the time, and that means there's no Second Amendment entitlement to carrying a concealed weapon, since the militia were required to produce their guns for inspection.

We are, after all, talking about “a well regulated militia.” And that term too is subject to its plain meaning.

Registration, restrictions on exotic weaponry (which would not be in the hands of such a militia) including automatic and semi-automatic weapons, rules against concealment, all seem to meet constitutional muster.

As one of the few liberals willing to admit that the plain meaning of the Second Amendment has some meaning, I must ask where in "the right to keep and bear arms" is the part where someone who discharges a bullet illegally into another has the right to have impediments thrown into the ability of the police to use non-intrusive technology to apprehend them? Where is the part where you can kill 27 people without stopping to reload?

Again and again, the NRA proves it is not the law abiding gun owners' lobby; rather, it is the murderers' lobby.

Unfortunately, this brings us to the political facts on the ground.

Because the one-issue voters on this issue (all of whom are on one side) are so fervent, and put their money and votes where their mouths are, even the fights over constitutional regulations have generally not been worth the effort, except during those limited political intervals where tragedy temporarily opens up the opportunity to shift the advantage.

We may have entered such an interval.

My friends on the left, (as well as some Bloomberg type centrists) seem intent upon blaming the lack of action on guns on the Democrats. They are not without a point, but neither are the Democrats.  I note with some glee, however, that almost all the people who send me angry emails whenever I talk about guns are invariably the same folks who think Bernie Sanders should be President.

And on gun control,
Sanders is 1000 miles  to the right of Joe Lieberman.  

But I forgive Bernie.

Good intentions are not a political suicide pact. So, I’ve joined with establishment Democrats in not having had much enthusiasm for pushing for even those regulations which I think do pass constitutional muster, even though they are usually well merited.

Back when he worked in the White House and when he chaired the Democratic Congressional Campaign Committee, Rahm Emanuel was of the strong belief that for many Democratic members of Congress is swing districts, supporting gun control was a liability. The "majority makers," as Nancy Pelosi called them, were often from rural or blue collar districts with strong NRAs.

You want Health Care? Taking a dive on guns was the price we paid. In their hearts, most DC Dems would like at least some modest strengthening of gun laws, but they have other priorities.

And the other side has a strong base of donors and voters who have no higher priority—and we do not.

Earlier this month, The Times did its obit for former Texas Congressman Jack Brooks.  A veteran lawmaker, and a lion of the institution, Brooks lost his seat, a fairly liberal one by Texas standards, in 1994. The Times notes:

 The most proximate cause of his defeat was his antagonizing of the gun lobby by voting for a crime bill that included a ban on 19 firearms as assault weapons. Mr. Brooks had fought vainly to remove the ban, but ultimately voted for the bill approved by the Judiciary Committee, which he led.

This left a gaping opening for his Republican opponent, Steve Stockman, a 37-year-old accountant making a third try for the seat.

“The problem that Brooks did was paint himself into a corner, quite frankly,” Mr. Stockman told The Washington Post after the election. “He sent letters saying, ‘I will do anything to stop the gun ban.’

“And he also said, ‘You need to keep me in office because I’m powerful.’ Well, you’re either powerful enough to stop the gun ban or you’re not. He set himself up as a giant and he couldn’t deliver.”

As The Times noted:

 He entered the House in 1953 as the youngest member of that year’s freshman class. He left four decades later as the most senior representative ever to have lost a general election.

And Brooks was just one of many.

Rahm Emanuel, who served in the Clinton White House at the time, did not forget the lesson. And neither did Nancy Pelosi or Steny Hoyer.

However, I would urge those who do feel strongly to behave exactly in the manner of the NRA, and then maybe things would change.

And now is the time to change them.

If there were a crazy one-issue control lobby with a crazy set of fanatics behind them, we might have some meaning gun regulation on a national level (albeit, within the limits the constitution allows).

If Mike Bloomberg were really serious about passing stronger gun laws, he could start financing some primaries in both parties and some general election campaigns. He would not even have to use guns as the issue. 

Perhaps the incumbents would survive, but the example of watching a few of their colleagues have to face the onslaught of a Bloomie Super-PAC might motivate some behavior modification leading to a little moderate gun control on matters most gun owners could care less about like assault weapons and tracing bullets.