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Lego - Indiana Jones
Posted on Monday 14 April 2008 at 11:02 am

Posting outside my comfort zones - politics

For the posting outside my comfort zones meme I posted a while back, wildmagelet asked to hear about my political leanings. The first thing you should probably know is that I hate the American political party system. I tried to get active in a party in college, and ultimately decided it just doesn't work for me. In the US, we obviously have two major parties and everyone else is deluding themselves if they think they're going to get anywhere. That's a bit of a overstatement because we have had third parties become major parties in the past, but that's the whole point. There has to be a party realignment and one of the third parties has to become one of the two major parties. We can't handle more than two real parties. Based on historical precedent, we're past due for a party realignment and I could see it happening soon based on the current political situation, but I'm a historian not a prophet so take that with a grain of salt.

I like to debate and consider issues. I like to ponder problems and possible solutions and decide what I think is the best way to approach something. After I make my decision, I then look at the parties. Most of the time, neither of the two main parties is inline with what I've decided independently. The third parties usually aren't either. So when it comes time to vote, I'm generally stuck deciding which of the two main parties is closest to me on more issues that I consider to be vitally important. In the past, that has been the Republican party because I'm generally a bit more physically conservative and I felt those issues were more important. Now, I don't think economics is the most important thing going on. Civil liberties and individual rights are much more important issues and on those I generally line up more with the Democratic party so I suspect that's where I'll be come November. We shall see.

As I said though, I like to debate and consider issues. Recently one of my friends asked my opinion on the Second Amendment. For those that don't know, the Second Amendment to the US Constitution is the gun amendment that always has everybody up in arms (haha) and 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." My poor friend got a 1300-word message detailing my thoughts on the matter and I've decided to share that with y'all to help explain my political views.

I can think of two quick and easy ways to try to decide what something in the Constitution should mean. (1) Analyze the grammar and language (2) Look at the situation at the time it was written and since to decide historical precedent. I don't know every case ever considered on the 2nd Amendment, but I've got a decent grasp of grammar and of the situation during the Revolution and writing of the Constitution and Bill of Rights to make me think I have an informed opinion on the 2nd Amendment.

(1) Grammar and language

Forget the 2nd Amendment for a moment. Let's look at the other nine amendments in the Bill of Rights.

1st - mentions the "right of the people" to assembly and petition. That's largely a collective right. It takes more than one person to have an assembly or a petition, really.

3rd - no quartering troops in a home without the permission of "the Owner" of that home. That's an individual right for each person to be secure in his or her own home.

4th - "right of the people to be secure in their persons" is another individual right. It starts with "the people," which was previously established in the 1st Amendment to be collective but tempers that with "their persons" which makes it into each individuals right within the collective.

5th – One of the rights of criminally accused in which "no person" is clearly a right of the individual

6th - "the accused" is again clearly a right of the individual

The 7th and 8th Amendments don't have any wording relevant to this discussion.

The 9th and 10th both refer to the rights of "the people." In both cases, I think this is meant to be a collective. The people as a group retain all rights and powers not delegated to the US or to the states as a collective. This interpretation becomes slightly problematic because the courts have used the 9th Amendment's guarantee of "certain rights," even those not specifically mentioned in the Constitution, to grant things such as a right to privacy which is quite clearly an individual right rather than a collective. That could mean that "the people" is here used for individuals rather than the collective. I don't think that is the case however. My reasoning is that the courts have, to the best of my knowledge, only used the 9th Amendment to grant rights to the individual in conjunction with the 14th Amendment. It is the 14th Amendment's "all persons" and "citizens" that makes the collective "the people" of the 9th Amendment into individuals.

So we've got words like "the owner," "their persons," "no person," and "the accused" whenever a specified right is to be applied to any individual. We've got "the people" when it is a right not of individuals but of the entire people acting as a collective.

Back to the 2nd Amendment - "the right of the people" is a collective. In keeping with the wording of the other nine amendments passed and ratified at the same time, the right to bear arms refers to the people as a whole, a public repository of guns, not each individual keeping weapons in his or her own home.

(2) Historical situation

Again, I'm not a lawyer and don't know every court case ever considered so I can't speak to the court precedent over the past couple of centuries. I am working on my dissertation for my PhD in Colonial and Early Republic American history, though, so I do know quite a bit about what was going on before and during the writing and ratification of the 2nd Amendment. It was a Virginian who was almost single-handedly responsible for drafting and forcing through Congress the 12 possible Amendments that ultimately became the 10 of the Bill of Rights and the 27th Amendment (the 12th proposed Amendment has not been ratified by the required proportion of states). The events in Virginia during the Revolution are vitally important to understanding the 2nd Amendment.

Every colony was different and every city was different, of course. There are a lot of myths floating around about every man was required to carry a gun at all times to shoot the Indians or it was illegal to own guns within the cities, or whatever. I suspect if one dug through every law every passed during the 170 or so years of colonization, one would find that all of these myths were true for at least one locale and not true for many others. But as I said, I think Virginia is the key to understanding the 2nd Amendment in particular.

Most white male Virginians in the late 1700s did not own a gun. They couldn't afford one and didn't need one. Instead, there was the public armory in Williamsburg. It was filled with weapons, was guarded at all times, and was to be used for the defense of the people. The militia trained every so often by gathering on the lawns near the armory, checking out weapons, and practicing marching and shooting with their rifles. And then getting insanely drunk and having a party. Before the Declaration of Independence, when Virginia was still walking a fine line and some were trying to blame as much as possible on Boston, the Royal Governor of Virginia suspected the people were going to rebel. Because of his suspicions, he ordered the royal troops to take possession of the public armory. This enraged the people, in no small part because it meant they wouldn't have access to guns to put down a slave revolt, and is partly responsible for Virginia's decision to commit to independence and a revolution. It is this to which the 2nd Amendment refers. It is the right of the people as a collective to keep a public stockpile of weapons safe from interference of the non-representative government. With the king removed and the government supposedly entirely representative, it becomes trickier to define the dividing line. Is it the people versus all government, the people as represented by the state legislatures versus the governors, courts, and federal government, is it the state governments of the people versus the federal government of the states? Hard to say for sure without delving into case law and legal codes beyond my realm of knowledge, but I lean toward the last option. I do know that public armories were maintained and vitally important for a very long time. It was a public armory at Harper's Fairy that John Brown tried to seize in order to provide weapons to slaves so they could fight for their freedom in 1859 or 1860 (don't remember which). No matter the exact dividing lines, it is a right of the people as a collective unit to keep collectively owned and stored weapons for the common defense, not a right of individuals to have weapons in their own homes.

If you made it through all that, I congratulate you. It should be obvious that I've given this a great deal of thought. Ultimately, I think all the information I have indicates that the 2nd Amendment does not guarantee individuals the right to keep weapons in their own homes but it does grant the right to have public stockpiles of weapons to be used for the common defense. Since we have a representative government, and the federal government is a great deal more representative than it once was, and we have both state and federal standing military defenses, the right of the Second Amendment is ultimately fulfilled by those. Now, I understand some people like hunting or feel a need to have a gun handy for protecting homes from violent criminals. Even though I don't believe the 2nd Amendment makes that a protected right, I'm OK with people having guns for those kinds of purposes. But they need to be heavily regulated in ways they aren't now.


Wild Magelet
wildmagelet at 10:10 pm on 14 April 2008 (UTC) (Link)
Fascinating. Honestly. My understanding, as far as American gun laws go, has always been very limited to an inaccurately generalised 'Republican pro-gun/Democratic anti-gun'. I agree with most of your points, disagree with some of your points, but can entirely respect your reasoning behind all of them.

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