Want A Gun Join A State Militia

Democrats are often viewed by Republicans as lacking in respect for the flag, weak on patriotism, and desiring to rewrite the constitution. I’ll cop to the first one as I’ve never been big on worshipping symbols, be it my high school football mascot or the stars and stripes. Patriotism is another matter as I believe patriots are those who recognize their nation’s failings and struggle to hold it accountable in order to make it better, count me in. Regarding rewriting the constitution, while it could use an amendment or two like equal rights for women and replacing the dangerous electoral college with the popular vote, I’m largely satisfied with simply enforcing it as is.

As an example the Second Amendment states: “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.” Many on the right and a significant fraction of those on the left interpret that as if the first two phrases don’t exist. The Supreme Court only recently started viewing it the same way. Prior to their 2008 decision in District of Columbia v. Heller the Supreme Court had not held that just anyone had the right to have any weapon they chose. In fact in a 1939 case the United States v. Miller, the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia."

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons." State and local governments are limited to the same extent as the federal government from infringing upon this right. Justice Antonin Scalia wrote the majority opinion in the Heller case.

Supreme Court Justice Antonin Scalia claimed to be an originalist, meaning that you have to interpret the constitution with an eye toward what words and phrases meant at the time it was written and nothing else. That notion is at odds with the views of many scholars and judges who believe one must look at legislative intent, ordinarily a judge or scholar will review the debate over the legislation, including any amendments made during the process to interpret those meanings. In the case of the constitution there are the Federalist Papers many of which were written by the primary author of the constitution, James Madison, others by Alexander Hamilton.  Both wrote about militia’s and their purpose in the new country. Their intent was for them to be organized and regulated by the individual states and beholden to them unlike a national army under orders from the chief executive. It is clear that weapons owing citizens were expected to be members of such a militia and to be held accountable by the states.

While Scalia turned the Second Amendment on its head even he made it clear that states and the federal government had both the right and the duty to restrict "the carrying of dangerous and unusual weapons."

There is no question that an automatic weapon with a high capacity, interchangeable magazine is a very dangerous weapon so it would appear that even Antonio Scalia would support restricting private ownership of weapons like those used in El Paso, Odessa and Sutherland Springs.

Published in the Seguin Gazette - September 20, 2019

Gun Debate Saga

There’s been plenty of partisan bickering over gun laws since the Orlando mass shooting. Let’s all step back and review the logic being used by defenders of guns of any kind anywhere, anytime. All five conservative members of the Supreme Court agreed with Justice Scalia’s opinion in the 2008 Washington D.C. v. Heller decision which expressed approval for bans on weapons like the military’s M-16. There is precedent for limiting what weapons we as a society are willing to allow on our streets such as, the now expired 1994 assault weapon ban which Ronald Reagan worked hard to see passed. Perhaps it is time to write a ban on weapons with removable magazines or on magazines with a capacity of more than 10 rounds.

Republicans in Congress prevented passage of a bill that would have made it illegal for someone on the federal no fly list to buy a gun. They argued that it would be an unconstitutional infringement on the Second Amendment right to keep and bear arms if the would be purchaser has not been convicted of a crime. I get that, but I have to wonder why it’s OK to prevent someone who hasn’t been convicted of a crime from flying on a plane. Is it just because methods of travel aren’t mentioned in the Constitution? I also have to wonder why the those same legislators are so quick to defend the Second Amendment but were the instigators and perpetuators of the abridgement of our Fourth Amendment right to privacy by the Patriot Act. Why are they supportive of the surveillance state that the United States has become with the NSA recording who we talk to, listening to what we say, and reading our emails without a warrant?

Leaving aside constitutional issues, congressional Republicans also killed a bill that would have closed what is erroneously called the gun show loophole. Actually any private sale doesn’t require a background check. The bill would have required that all gun purchasers be subject to the same federal background check as those already required when purchasing from a federally licensed firearms dealer. I still haven’t figured out why they are willing to allow individuals to sell guns over the internet without a background check. Oh sure, the apologists will say that isn’t the case but if the seller is a private individual and posts their gun for sale on a site likes armslist.com they can arrange to deliver the gun to an individual at their home or a parking lot and there is no federal requirement for a background check. The same holds true for any private sale whether at a gun show or between neighbors. Upwards of 85% of Americans want all gun purchasers to be background checked. Why aren’t Republicans willing to support this common sense regulation?

It would seem, in this election year, that Republicans simply want to score points with extremists who believe guns should be unregulated. Apparently they’re not concerned that 85% of Americans disagree with them.

What's more important to you, your right to a trial or your gun?

While the bed wetters among us are all outraged about supposed infringement on their Second Amendment rights I’m not hearing much from them or anyone else about a far more chilling government breach of our constitutional rights. President Obama has taken it upon himself to determine enemies of the state and sign off on the execution of American citizens without a shred of judicial oversight. This is beyond the Patriot Act which opened Americans to invasions of privacy such as national security letters to libraries and internet service providers demanding our records without our knowledge and beyond warrantless wiretaps. This is giving one man the power to snuff out the life of an American citizen anywhere in the world at any time without even a single hearing before a judge.

The gun crowd is dampening their drawers over concerns requiring background checks on every gun purchase and limiting magazines to 10 rounds somehow violates the Second Amendment that even arch-conservative Supreme Court Justice Antonin Scalia thinks is a limited right. At the same time many of them are supportive of these extra-judicial killings of people who have not even killed anyone let alone another American. I’m a lot less worried about the government taking my gun away than I am being bombed by a drone; after all look how many people are denied air travel because the government put their name on the “No fly list” because their name sounds like some reputed terrorist.