The Green Papers Commentary

Some 21st Century Ruminations on
at least Guns and "Illuminations"

Wednesday, July 2, 2008

by Richard E. Berg-Andersson Staff

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade with shows, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more--

JOHN ADAMS, a Delegate from MASSACHUSETTS BAY in the Second Continental Congress, in a letter to his wife Abigail, dated 3 July 1776 and sent from Philadelphia, Pennsylvania where the Congress was then meeting.

Well... with all due respect to Mr. Adams, it is the Fourth Day of July we commemorate, not the day on which I- interestingly- happen to be typing this! ;-)

Got a rather interesting mailing via the ancient and honorable "snailmail" method... it was a quite colorful and altogether glossy fold-out brochure from a retailer of fireworks for personal use.

What's interesting is that this particular fireworks retailer is located in a neighboring State, albeit quite close to its border with my own State. Even more interesting is that what he is legally selling in his establishment is actually illegal in his own State- but he is, nevertheless, permitted to operate his business so long as he sells only to out-of-State residents who come to his store...

problem is: he is permitted, by the regulations of his own State under which his business operates, to sell to out-of-State residents even if their own State has, in addition to his own State, also made that which he sells illegal!

It all seems very much like allowing a cocaine trafficker to legally operate so long as no one to whom the trafficker is selling the otherwise controlled substance happens to be from the State in which he might so legally operate.

I might have simply done the usual-- griping about how a neighboring State is allowing someone to sell stuff illegal in my own State to be used, anyway, in my own State regardless of such regulation before ripping the label with my name and address off of the brochure (so that what this guy had the unmitigated gall to send me won't also then lead to Identity Theft) and tossing it into the Recycling bin in my garage-- and not even bothering to mention this incident in a Commentary for 'The Green Papers', were it not for two interesting events that then occurred rather soon thereafter:

First, as I was perusing one of the local newspapers while eating breakfast at a nearby diner here in North Jersey a day or two later, I came upon a Letter to the Editor written by the fireworks retailer himself in which he referred to the laws of my State banning Fireworks for home use outmoded (he argued that the fireworks of today cause far less injury than those of the past-- to which my immediate thought was 'what? the average child who gets injured by fireworks now only blows off 0.8 fingers instead of the one-time 1.7?!' [;-)]-- and that, therefore, making fireworks illegal for personal use is no longer even necessary) and, further, quoted liberally from the above quotation from John Adams as if it were some kind of presidential fiat (well-- Adams did become President of the United States a little over two decades after he had penned those words) we Americans were all duty-bound to follow to the letter forever after rather than what it really was, a most heartfelt outpouring of exuberance on John Adams' part (after all, I myself once told a friend- many years ago- that "if the Boston Red Sox ever finally win a World Series, I'll do cartwheels, naked, up and down my own street"-- needless to say, come the late evening of 27 October 2004, my neighbors were not at all treated to the spectacle of my so violating State and local regulations against indecent exposure, not to also mention I did not actually risk my being hauled away and thereafter declared non compos mentis! [;-)]).

About a week after I read the fireworks retailer's comments, the United States Supreme Court handed down its decision in the case of District of Columbia v. Heller, in which Dick Heller, a security guard (at the Federal Judiciary Center in Washington, no less!), sought a permit to register and, thereby, legally keep and bear a handgun at his home in the District, only to be denied said permit. The District Court ruled against him, he appealed; the Circuit Court of Appeals reversed the decision below, D.C. appealed and the U.S. Supreme Court affirmed the ruling of the Court of Appeals.

I immediately (with the Fourth of July of '08 soon approaching) thought about Adams' reference to celebrating independence with "Guns... and Illuminations [meaning fireworks]" and also thought about how interrelated the two could actually be (after all, there are municipal ordinances regulating the firing of guns within municipal limits as well as laws banning fireworks displays on private property)... hence this piece you are now reading:

While I happen to be not all that crazy about people running around with handguns, I have to say that the decision of the Supreme Court in Heller (if only in relation to what was an outright "zero tolerance" ban on private ownership of handguns) was, indeed, the proper one.

The Second Amendment to the Constitution of the United States reads as follows:

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.

In a Commentary I wrote some six years ago, also- as is the case with this one- while we Americans were about to, once more, celebrate Independence Day, I outlined- in something of a "tabular" form- the legislative history of the Amendments we tend to consider the "Bill of Rights". I noted, therein, how Congressman- and future President- James Madison had originally presented his proposed Amendments (themselves inspired by those suggested- in one case [North Carolina], demanded- by some of the Ratification Conventions in the several States called upon to approve the U.S. Constitution in the first place) as items to be placed in their respective appropriate places within the original text of the document but that this approach was to be rejected by the First Congress in the course of its working Madison's proposals into a form in which they could eventually be reported out (by two-thirds vote of each chamber) to the States for potential ratification, per the Constitution's own Article V.

Had Madison, instead, had his way, what is now the Second Amendment would've been placed, along with a healthy chunk of the rest of the Bill of Rights, amongst the provisions of the original Constitution's Article I, section 9 (that which specifically deals with what Congress cannot do: this, by the way, explains the very wording with which the First Amendment begins: Congress shall make no law...). In such a case, the relationship between the Second Amendment's "A well regulated Militia" and the following clauses of Article I, section 8 (which specifically states what Congress can do)- that is:

[The Congress shall have Power]

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. (clause 15 of Art. I, sec. 8)

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. (clause 16 of Art. I, sec. 8)-

would have then been the more clearly discerned.

Put another way: there is a reason that the word 'Militia' (re: "A well regulated Militia") and the word 'State' (as in "being necessary to the security of a free State") are capitalized in the Second Amendment, as they also are in the two so-called "Militia clauses" of Article I, section 8 of the original U.S. Constitution and, therefore (under the presumption of Legal Hermeneutics [basic 'Statutory Construction 101'] that no portion of a legal Code is to be read as at all conflicting with another portion of the same Code not specifically altered or repealed [the "Code" here being the Federal Constitution itself]), the first- conditional, if you will- portion of the Second Amendment is to be understood as it relates to these Militia Clauses in the original text of the document.

Yes, indeed, I wrote "conditional"... while recognizing, however, that, as is more usual, neither side in a controversial political issue of the day is at all a paragon of intellectual honesty and it is certainly no less so when it comes to that issue which has become known under the rubric "Gun Control".

Aside from the very meaning of the words 'Militia' and 'State' having to (if one is going to be intellectually honest) be understood as coming out of the exact same context as the use of those same words elsewhere in the same document, there is the fact that- as a very matter of basic English Grammar- the first portion of the Second Amendment modifies the second, and final, portion; thus, the second portion of the Amendment is conditional upon the first!

When, back in my teenage years some three and a half decades ago this very Summer, my Dad would say to me "Once you've mowed the lawn, you can borrow the family station wagon", what precisely did he mean? Clearly, he meant that I could only borrow the family station wagon so long as I had already mowed my family's lawn- nothing more, but also nothing less. In addition, if I were to have driven off in the car without having so mowed the lawn, I would have been in quite serious trouble once I had brought it back home, I can assure you!

Likewise, 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 means but two things:

1. the people have a right to keep and bear arms so long as it continues to be recognized that a well regulated Militia is considered necessary to the security of a free State (such recognition, by the way, is ever a given, unless and until the Second Amendment itself might be altered or repealed [which can only be done via another Constitutional Amendment, by the way]: for the security of a free State being protected by a well regulated Militia is, within its text, stated as a self-evident truth that is otherwise unalterable);

2. if one or more of these same people refuse to be (if only in theory) a Militia (as this term is also understood in Art. I, sec. 8, clauses 15 and 16) so well-regulated (note: by the State of the Union in which they might so keep and bear such arms), such individuals will- in such cases (and in such cases only, applying only to those individuals who so transgress)- no longer be permitted to exercise such keeping and bearing of arms in the manner in which said transgression has taken place.

Simply put: there is such a thing as unlawful possession and use of weapons, the Second Amendment notwithstanding...

and to argue otherwise is to completely ignore (as so many in the so-called "gun lobby" very often do- whether inadvertently or purposely) the first portion of the Amendment's own provisions!

But, having said this, there is also lawful possession and use of weapons, as a matter of right guaranteed by the Constitution, and there is, therefore, an inherent problem with an outright banning of handguns such as the District of Columbia had in place until this recent decision by the High Court was handed down:

First of all, Banning something is not at all Regulation of that same "something"...

instead, Banning is, at its heart, a Refusal to Regulate...

indeed, it is very often an admission of Failure to Regulate something and a Ban can even be a Demand to Not At All Regulate something as well (Prostitution, for instance, is banned in most of the Nation primarily because of the demands of the Moral Standards of the Community so banning it- though much of this is on grounds that even the drafting of a code of regulations for such an undesirable practice also implies condoning of that same practice by at least some of the legislators representing the jurisdiction [but what is it I myself so often say?: 'as Liberals all too often confuse Condonation with Tolerance, Conservatives all too often confuse Tolerance with Condonation' ;-)]).

In the end, then, a government cannot possibly regulate that which that same government has already made illegal!

I mean: it's not as if the heroin dealer contemplating 10 kilos of the narcotic sitting on a table in front of him says to himself 'hmmm-- I could now put 5 kilos of heroin each into two 10 kilo bags and fill up the rest of these bags with something that closely resembles heroin but really isn't and, thereby, nearly double my profit-- but I won't do so because that would be against the Law!' ;-)

By banning handguns outright, then, the District of Columbia was, in effect, refusing (where not also failing) to "well regulate" these weapons and, thereby, unconstitutionally infringing upon the right of its own citizenry (who- despite being resident in an incorporated Territory of the USofA- are just as much "We the People of the United States" as are the citizens of the several States of the Union) to keep and bear arms... pure and simple.

Those who decry this recent decision by the Supreme Court further claim that the right to keep and bear arms in the Second Amendment is a so-called "collective" right (that is, it is a right that cannot at all be asserted by the individual but only in relation to the individual's being part of a "class" known as "the Militia" [and the definitions of "Militia" vary amongst the various and sundry proponents of this position]).

The problem with this "collective right" argument is that no other right in the Constitution is at all so "collective"!:

not the right to vote for members of Congress where you can also vote for your State's legislature (who you vote for is, after all, the exercising of an individual right); nor the right to habeas corpus (Latin, "I have the body"- not "bodies"); certainly not the right to freely exercise Religion or free Speech or freedom of the Press (all exercisable by individuals);

the right to freely and peacefully assemble is not at all "collective" (for you decide, of your own volition, whether or not to join in with those who might be so assembling); the right to be secure against unreasonable search or seizure is one relative to, at base, the searching or seizing of individuals or his/her possessions; "No person" (singular) can be denied the many rights found in the Fifth Amendment; "In all criminal prosecutions, the accused" (singular) enjoys the rights of criminal defendants provided in the Sixth Amendment; cruel and unusual punishments are not to be inflicted upon even a single individual;

"All persons" (despite the plural, they are each individually) "born or naturalized in the United States" are citizens; Blacks, women and, indeed, all persons at least the age of 18 are entitled to vote-- but no African-American is at all required to vote the same way as any other Black voter, no woman is required to cast her vote on the basis of those cast by other women- indeed, no individual voter is at all mandated to vote the exact same way as all other voters as a class!

Therefore, treating the right to keep and bear arms as "collective" would be a most singular exception to what appears to be the general scheme of the constitutional enumeration of rights itself.

Not to also mention that it well flies in the face of the very philosophy whose birth we will, once again, so soon be celebrating come this Fourth of July:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain ("certain" here used in its somewhat archaic, 18th century sense- "that of which we can be certain precisely because there are not so many so as to no longer be so easily comprehended or contemplated"-- i.e., "certain" here meaning "a limited number of") unalienable Rights, that among these (thereby, implying- albeit, again, a limited number of- others not here specifically stated) are Life, Liberty and the Pursuit of Happiness.

But it is individual Life, individual Liberty ("ordered Freedom"-- that is, you can do whatever you might wish, so long as it might be lawful) and the Pursuit of Happiness by the individual that is here so self-evident and unalienable... why?... because, in the conception of the Authors of the Declaration of Independence as well as those who adhered to it, their Creator so created those He so endowed individually.

Where the Constitution of the United States that, ultimately, became the principal vehicle- the very legal Code- through which these "unalienable Rights" were to be the better preserved and protected (by the several States joining together in a "more perfect Union" than that under the Articles of Confederation, as well as a new Federal Government overarching said Union) declaims in the collective, it is to collectively defend the rights of the individual against the potential "tyranny" of that very same collective.

Yes: "We the People... do ordain and establish this Constitution" (and, as I myself have often pointed out in my writings for this very website, the grammatical tense is ever that of the present-- for we Americans who actually 'give a damn', even though none of us was alive at the time of the Convention in Philadelphia of 1787 that drafted the Constitution's original text, actually "ordain and establish" "the more perfect Union" anew with each individual action we might make in relation to Politics, even if that merely be going to the polls come election time- that is, as political individuals, at Liberty to choose [or not choose], to freely vote for [or against], candidates for elective office at various and sundry levels of governance- Federal, State and local)...

but in order to, more or less, overhaul the Constitution so ordained and established- or, for that matter, completely overhaul any part of it, the People have to express their desire for same by- to use George Washington's words in his Farewell Address- "an explicit and authentic act of the whole people": in other words, a Constitutional Amendment...

yet gaining just such an Amendment is usually quite hard to do (and this is, of course, by purposeful design: a Constitution, after all, should not be tinkered with lightly through the same means through which ordinary statutes are enacted, altered or repealed; in essence, a "super-statute", an effective Constitution should require a supermajority of the political Will of the People, however formally expressed, before being at all changed) and- just as the "gun lobby", as I've earlier said in this piece, often completely ignores the first portion of the Second Amendment- those favoring so-called "Gun Control" so often completely ignore the Amendment's second portion (or, at the very least, well downplay this second portion [the right] in relation to the first portion [the regulation thereof])- hence their argument as to the "collectivity" of the right to keep and bear arms, an argument which I disposed of earlier.

Therefore, Justice Antonin Scalia is correct where he wrote, in the opinion of the Court in Heller:

The Constitution leaves... a variety of tools for combating that problem [that of handgun violence]... But the enshrinement of constitutional rights necessarily takes certain policy choices off the table... what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Which, of course, makes most perfect sense... for if the High Court (or, for that matter, any court- or, indeed, any other organ of government) can declare the Second Amendment extinct, then it also has- inherently- the power to declare any other provision of that same Constitution of which the Second Amendment is a part extinct (what about the Fourth Amendment, especially in its relation to the controversial wiretapping that was the very subject of my own Commentary back in January of 2006? What about the First Amendment that pretty much allows me to write, and have posted on the Internet, this very piece you are now reading? "Be careful what you wish for-- you just might get it" [;-)])

Thus, here it is an individual right that is (as is the case with the all the rights which are) enshrined in- hence, protected by- the Constitution, not at all a collective one. And the legal theory behind this particular right- keeping and bearing of arms- being so individual is itself altogether basic:

an American has a right- subject to reasonable restrictions (for example: if you are a convicted manslaughterer, you have probably forfeited this right- at least for a notable time after said conviction)- to keep (that is, possess) and bear (in other words, carry) arms- again, subject to reasonable restrictions (both legal [for there are certain arms you cannot keep and/or bear- say, to take an extreme example, tactical nuclear weapons] and private [check your weapons at my front door, please! ;-)])- subject to regulations (including along the lines as those few I have already noted) by a State of this Union or its agencies (local governments in their capacity as creatures of the State, for instance) because, in theory, one's being a citizen of that State places one- by very definition- within its unorganized citizens' Militia and, therefore, subject to such regulation by virtue of being part of said Militia...

put another way: the very reason the State even can regulate is precisely because the keeping and bearing of arms being so regulated is itself not inherently illegal!...

but such regulation can never completely nullify the right itself, as was the case with the D.C. statute in question here.

Don't like this? Then amend the Constitution!...

can't get that done? well-- dem's the breaks!

Now, no right is absolute and even Justice Scalia acknowledged- in Heller- that the right to keep and bear arms per se is "not unlimited"... thus, despite the hue and cry now raised, from the losing camp, that all gun regulation is now doomed, the fact is that- as what I quoted from the Opinion itself notes- "The Constitution leaves... a variety of tools".

A little over a decade ago, around this time of year in fact, a deer- a young buck- was hit by a car on a street near my home and had both its back legs severely injured (multiple compound fractures were quite evident); it decided to crawl (literally, or so I was told) to just behind my dining room window to lie down on the lawn and, presumably, die. One of my neighbors had called the police of my town and two police officers were dispatched to assess the situation (another of my neighbors, meanwhile, banged on my front door in order to tell me about the wounded deer in my backyard)...

my municipality has a local ordinance against the firing of firearms without a permit within its limits: even the police themselves had to radio into headquarters in order to get permission from the commanding officer on duty to put the buck out of its misery with a single shot to the head from a pump-action shotgun (though this may have also had a lot more to do with making sure that, if anyone in the surrounding blocks suddenly heard a shotgun blast at around 3 in the afternoon in what was generally a residential section of an otherwise quiet North Jersey suburb and, as a result, called the police, the police would already know what was going on).

I have, in preparation for putting together this piece, read the entirety of the Heller Opinion of the Court, along with the dissenting opinions of Justices John Paul Stevens and Stephen Breyer, and I fail to see where the ordinance in my own town would be the least bit affected!

But let's assume, for the moment, that my town's ordinance against firing guns within its limits were unconstitutional, would a similar local ordinance- or State statute- banning the use of fireworks, likewise, be unconstitutional? (I deal with this question if only to bring this Commentary full circle to where I started off the discussion, by the way.)

Answer: No!

In the Opinion of the Court in Heller, Scalia noted that the term "Arms"- as found in the Second Amendment- was that which was, at the very least, understood by the Framers' own generation. Scalia even cited a couple examples from Dictionaries of the era...

my own researches show me that, based on such publications as the very first edition of the Encyclopaedia Britannica from 1768, "arms" clearly referred to that which could be used to defend one's self-- for example, "ARMS of courtesy, or parade" is defined as "lances not shod, swords without edges or points... used in the ancient tournaments": in other words, arms that were purposely modified so as not to be useful for self-defense (the equivalent of a gun loaded with blanks as used in a "Wild West shootout" in many a tourist theme park)...

fireworks are, most assuredly, not arms that can be used in self-defense and, therefore, do not come under Second Amendment protection in any event!




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