Month: February 2013

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What does the Second Amendment mean?

There is a lot of noise recently about guns. It would be inaccurate to call that noise a debate for many reasons. An important reason is that the language used in the noise, and the language we have available to use, is degraded to the point that it is hard to determine what is being said. It is sad to note that, very often, speakers want to confuse rather than elucidate their listeners. I hope to clarify some of the issues at stake; it is not my intent to argue for an answer, and my reason for avoiding a personal opinion should become clear eventually.

The echoes of gunfire in Newtown, Connecticut, had not stopped reverberating, and as we can all remember; the stories being reported were still wildly inaccurate, when politicians jumped on the opportunity to grab the spotlight and further their agendas. Since they acted before anyone knew what had happened, there is little reason to suspect that they were responding to the events. Some may have thought they were, taking the well-known tack: “I know it will not help, but we must do something.” Certainly, in such a case, there is no great probability that what we do will help others, so it must be done to help ourselves. Emotion is a better tool for a demagogue than reason.

The Second Amendment is invoked to in such expostulations. But an important aspect of this lack of communication is the failure to ask, let alone answer, the question: “What does the Second Amendment mean? What right does it protect?”

That is called “begging the question”. This phrase has become popular recently with people who want to appear more erudite than they really are, and throw it around, usually in situations where it seems they mean “raise the question”, but that is precisely what it does not mean. This is more than mere whining by a grammarian. Symbolic language is what set us apart from other animals, and it is the tool we use to survive and improve our common lot in life. A dull tool is less useful than one that is well maintained, and a perverse disdain for proper language and the learning of good language and the improvement of our language will disarm us in our daily struggles to help ourselves and each other. This theme will reappear in this blog.

To beg the question means to avoid discussing the question at issue, and proceed to argue as though the point were settled in your favor. If you have not been taught this technique, you will more easily fall for the gambit.

First, the Second Amendment has nothing to do with hunting or “legitimate sporting purposes”. Go read it. Read the whole Constitution. Read the copious documents that were written to support and oppose it. Nothing there. Nevertheless, Americans have a right to hunt, and a right to use firearms for sport; it is just not in the Second Amendment. For that reason saying that you do not intend to infringe the right to hunt, in no way indicates that you do not intend to infringe the right to bear arms a set forth in the Second Amendment; as things stand, it rather raises the suspicion that you do.

Some people have recently begun to voice the obvious fact that the Second Amendment refers to guns that could be used to oppose a usurpative government. That is perfectly true, and remember that the people who wrote it were not thinking, any more, about King George, but rather about the very government they had just established according to the best principles they could hammer out together. It is true, but not the whole story, and for people today, some of whom cannot conceive a world outside their own comfortable existence, not the best argument. It should be noted on this score, that since the Second Amendment clearly refers to a militia, the assault rifle is probably just exactly what the delegates meant. Not that that means that we have to allow people to own fully automatic weapons, but rather that we have to argue and agree democratically why they should not. We cannot just pretend that such a thing is ridiculous.

The larger meaning of the Second Amendment may be found in its environment, both in the words around it and the culture from which it grew. It may come as a surprise to many people that the Constitution was not the result of a manufactured crisis, hatched in secret, and adopted with no time to read it, let alone debate it. Every word was discussed, every phrase scrutinized, by people who had been developing their ideas of self-government in their various colonial governments for scores of years. The Bill of Rights came about because enough people thought the Constitution lacked explicit protection of certain rights that they deemed essential to the survival of a free people to persuade the majority to correct the oversight. Hunting and sport do not rise to that level; there is something very basic at stake here and it is important to think seriously about it before throwing it away in a fit of manufactured emotion.

 

Next:  what are we overlooking by failing to understand the Bill of Rights as a whole, as more than the sum of its parts?

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Indiana Legislature will not move HJR 6 (the marriage discrimination amendment) this year.

Speaker of the House, Brian Bosma and Senate President, David Long have announced that the marriage discrimination amendment (HJR 6) will not be heard, nor acted upon, this year. They pointed out that the U.S. Supreme Court will rule this spring on the issue of marriage equality and that it would be embarrassing for Indiana to have a ballot initiative on an amendment that had already been declared repugnant to the United States Constitution. If the two houses pass HJR 6 before the next election, there is no way to keep it off the ballot in November 2014, so they, and we, will await the pleasure of the court.

There is little doubt that the Supreme Court will find, one way or another, that Proposition 8 in California is unconstitutional and that the right to marry the person of your choice there must be respected. But there are several ways that their decision could be limited to California or to some states in the Ninth Circuit. Similarly there is little doubt that the court will find that the United States government must respect legal marriages from any state and treat citizens accordingly. But it is less clear that they must extend marriage equality to all the states, based on the cases in front of them.

There is a principle of judicial review, which I remember from my childhood, but which seems in recent years to have been honored more in the breach than in the observance, which enjoins the courts to draw the narrowest possible scope to their decisions. Recently I saw it cited by the United States Court of Appeals for the District of Columbia: “It is a well-settled principle of constitutional adjudication that courts ‘will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.'” In this case that means that if they can come to the right decision, or outcome, in the cases before them, which involve specific wrongs to specific people (and other similarly situated), then they should not take the opportunity to make sweeping pronouncements about other aspects of the laws before them, or other laws. To do that, by the way, would be judicial activism; not the act declaring an unconstitutional law invalid, which is their job, but the act of making judgments that are not necessary to rendering justice in the case in front of them, even if I wish they would do so.

When I was young, lawyers went mad trying to find the perfect case where the only way the court could decide would force the constitutional precedent they desired. They had to find a case where the only issue was the constitutional one. For example, this fall the court asked the lawyers in the Proposition 8 case to brief them about the question of whether the appellants had standing to appeal. If they did not, there was no valid appeal, even to the court of appeal; the original judgement would stand, and apply only to California. The court may have had other reasons to make that request, so it would be wrong to read too much in to it but that is one outcome that would do justice in the lawsuit filed in California, but would have absolutely no effect elsewhere. That is one reason why it is sometimes beneficial for the government to appeal a judgement even when it agrees with it. If there is a valid appeal to the Supreme Court, their judgement becomes the law of the land. If there is no appeal, the judgement is merely local precedent and useful in argument.

As I wrote above, it is no my sense that the court has been nearly so persnickety of late, so you might think, or hope, that they would decide these cases with a broad brush and declare any such limit on the fundamental right to marry the person of your choice, and be treated equally when you do so, unconstitutional. ‘Tis a consummation devoutly to be wished. But this court has signaled a sensitivity to public opinion, to political pressure, and a reluctance to make robust decisions. It is equally erroneous for a court to show too much deference to the legislator, nullifying the will of the people expressed in the constitution, expressly to constrain that legislator, as to overreach by making pronouncements that are not justified, not compelled, by the case in front of them.

So we will wait for the spring to find out if, for the nonce, spouses of federal employees will get benefits and people in California can marry irrespective of invidious classifications but the rest of us are untouched or if the struggle for marriage equality and with it the core of this chapter in the struggle for equal rights is over in this country. The legal issues in the cases before the court seem clear, but the question of scope and how the court will navigate the issues before it and pressures upon it are murky.

I had planned to write on how the decision of the House and the Senate will affect our lives in Indiana for the next year and more immediately for the next couple of months.This post is long enough and I will recur to my intention soon.

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Welcome

Welcome to my blog. I hope to record my thoughts here. The title, Thinking Darwin, acknowledges the central position of Darwin’s work to our lives in the modern world. I believe that I once saw a banner on the Notre Dame website stating that our world could not be understood without understanding his work. I believe that very few people actually understand that work and its import. Of course, there are those who “do not believe” in him. But you have to include also those who do believe in him. One of the important aspects of Darwin’s thought is that it has nothing to do with belief.

I will be developing my thoughts on the subject, and interspersing that thread, with thoughts on current events and discussions (which may elbow out the main thread from time to time) and stories that I have heard or read or observed.

I welcome contributions and additions.