NRA Bad! Gun Owners for Safety Good!
An End Run Around the NRA
Apparently, Gabby Gifford and Mark Kelly, through the Giffords Foundation, recently created a gun owners association called “Gun Owners for Safety.” While many in the 2A community disparage the effort as a bait-and-switch ploy aimed at the muddle-headed or the uninformed within the gun community, I see it as a deliberate, and calculated tactic to disassociate gun owners concerned about “gun violence” from their membership in, and support of 2A advocacy groups.
One of the more interesting tactics of the Gifford group is their identifying the NRA as the organization they directly oppose. Apparently, the Giffords still regard the NRA as the opposition, which tends to support my previous claim that the name recognition and cachet of the NRA is still potent among anti-2A groups.
Progressive or Originalist
A popular statement when referring to the U. S. Constitution is “it’s a living document.”
To the progressive, it means interpretations of the Constitution can and should mediated by whatever social or political forces are prevalent. Essentially, it means the reader is free to assign meaning to the text as he, she, or whatever sees fit. It is “living” in the sense that interpretations of it must be made to respond and conform to contemporary societal norms.
To the originalist, it means interpretations of the Constitution must be mediated by the intent of its framers. Originalists hold that there was authorial intent in its framing, and readers cannot arbitrarily assign new and unintended meaning to the text. It is “living” in the sense that we use it to keep our Republic within the boundaries foreseen by our framers as conducive to a healthy Republic governed by consent of its citizens.
2A: Militia or Individual
Second Amendment arguments often center on the intent of the first clause, “A well regulated Militia. . . .” Was it (1) intended to limit the keeping and bearing of arms to militias, or was it (2) a clause whose intent was to justify and provide purpose to the right to keep and bear arms?
The first interpretation implies there is no individual “right” to keep and bear arms; individual firearm ownership is a privilege, which can and should be controlled by the state. The second interpretation implies there is an inviolable (and antecedent) individual right to keep and bear arms, a right which is necessary to ensure the security of a free state. In point of fact, the late Supreme Court Justice Antonin Scalia officially opined the second point is the proper interpretation (DISTRICT OF COLUMBIA v. HELLER (No. 07-290) 478 F. 3d 370, affirmed).
The Giffords’ activism suggests they align more closely with the first interpretation rather than the second. The fact that they favor restricted firearm ownership suggests their sponsorship of and advocacy for “Gun Owners for Safety” is counting on the uncertainty, indecision, or conformity over the “militia” interpretation by many American gun owners to fill their ranks. A second factor upon which the Giffords prey with their “Gun Owners for Safety” is the genuine concern and revulsion Americans have over firearms being used to further violence among and against the American populace.
A Provenance of Protective Reactions
As one unpacks the elements of the Bill of Rights, a pattern of reaction becomes clearly evident. However, it is necessary to view the Declaration of Independence and the Constitution of the United States as documents in progression, and complementary.
The Declaration of Independence set the general parameters for “certain unalienable rights” that are antecedent to any government, declared that governments derive their power from the consent of the governed, and stated that infringements upon those unalienable rights, or violations of that grant of power subject said government to abolition and re-institution.
The body of the Constitution in its seven Articles sets the form and conditions of that consensual government. On reading it, one is struck by the concern the framers had for a balance of representational power between regions of high population density and rural areas. It shows up in the establishment of a bicameral legislature with one house with direct representation, and the other house originally reflecting state (read “regional”) representation. That concern also shows up in the electoral college, where presidential candidates must win the majority of states (again, read “regions”) individually to earn the Presidency. Simply garnering a majority of the population who happen to reside in high density regions is not sufficient.
It is the Bill of Rights that identifies the unalienable rights about which the framers were most inflamed, and concerned. It is highly probable the Bill of Rights were included, and so articulated to specifically address actions curtailed by the British Crown in the years preceding the War for Independence.
Established Religion and Religious Conformal Prerequisites
The framers were obviously concerned about government instituting an official religion. Along with the objection to an official national religion there also seemed to be a concern with unofficial, yet government-approved religions in that one’s free exercise of religion was also protected from government interference. Thus, no religious conformal tests or prerequisites.
Expression of Grievances
The voicing of grievances as a path toward their remedy is another of the framers’ concerns. To preserve the right of the people to voice grievances we see speech, assembly, and petitions to government being protected against government control or infringement. Specifically included along with protections to speak freely, ostensibly about the government, was the prohibition against government control of what we would today call “the media.”
Involuntary Quartering of Troops
In what we would likely claim today, “a man’s home is his castle,” the Bill of Rights specifically prohibits government from forcing home owners to provide quarters, which likely included meals, for occupying troops. An exception was granted that in time of war, it may be necessary to do so, but only when legislated by Congress.
Inviolability of Personal Privacy
The content of the Bill of Rights suggests the framers were trying to prohibit government from violating the right of the people to personal privacy merely because they were suspected of some violation. Also protected against government overreach were one’s personal effects. Thus, the prohibition against unreasonable search and seizure. Warrants to execute such action require specificity and probable cause, not simply “official” suspicion.
Protections Against Judicial and Civil Overreach
The Bill of Rights includes four Amendments that protect the right of the people against judicial and civil overreach by the government. One prohibits the government from requiring the accused to be a witness against himself, prohibits the government from depriving the accused of life, liberty, or property without the opportunity for a defense, and prohibits one from being tried twice for the same crime. Another prohibits government from incarcerating people indefinitely without specific charge or trial, or access to a counseled defense. A third prohibits government from tailoring bail or fines, and from tailoring and exacting cruel and unusual punishment.
Civilly, the Bill of Rights prohibits government from declaring and seizing private property for public use without just compensation. Another protects the right of the people to trial by jury in matters of common law, and where a juried trial was conducted, prohibits unjustified government re-examination.
Not All Rights of the People Listed
The framers specifically stated that the rights delineated in the Bill of Rights was not exhaustive. Further, they implied just because a right of the people was not delineated therein was it automatically open to unjustified infringement by government. There are other, unstated rights of the people.
Keep and Bear Arms
I reserved a discussion of firearms for last purposefully. In each of the other Amendments in the Bill of Rights, one can clearly see that the primary objective of the framers was the preservation of “the right of the people” against government overreach, regardless whether that overreach be national or regional in scope or reach. When read carefully as a pair of complementary documents, one can also see the framers wrote the Bill of Rights, not to grant rights, but to protect antecedent rights from government intrusion and infringement.
Thus, if it was the intent of the framers to protect “the right of the people” in nine of the ten Amendments, it seems reasonable to conclude they also intended “the right of the people” to be protected in the Second, rather than an amorphous, impersonal, and non-personified “militia.”
It Only Meant Muskets
Another argument augured against the Second Amendment is that the framers could not have foreseen the advent of semi-automatic firearms, and therefore they cannot be protected by it. The first part is true; the framers did not specifically articulate protection for keeping and bearing of semi-automatic firearms, or breech-loaders, for that matter. However, one must also consider that in that era, private ship owners, whose ships often bore cannon, were granted letter of marque to act as agents of the government in the commission of war. Cannons are not muskets, either.
Conclusions
In the final analysis the framers of the Constitution seemed concerned to protect and preserve “the right of the people” against government infringement and overreach. Justice Antonin Scalia affirmed the individual “right of the people” in the Supreme Court decision DC v. Heller: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”
Suggesting the Second Amendment applies only to 18th Century firearms is equally ludicrous: “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, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , 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.” (DISTRICT OF COLUMBIA v. HELLER (No. 07-290) 478 F. 3d 370, affirmed).
Violence with firearms is reprehensible, but it is important to punish the violator, not the tool used. If we set a precedent to punish tools, then we had better abolish automobiles and alcohol since they kill far more people than firearms.
The Giffords’ “Gun Owners for Safety” is a deliberate attempt to obfuscate a clear “right of the people,” and perform an end run around, not only the NRA, but the Constitution as well, without the effort of deliberately amending it.