Response to Billy Blog

This blog is a response to The Billy Blog's response to my own blog. Go check it out and leave a comment if you are so moved. My response was quote heavy and too long so I had to move it here. Since it was a response I didn't hyperlink my sources like I normally do so you can fact check easily.

My blog was a historical debate on the context of the 2nd Amendment. I would say your whole argument about the 2nd Amendment's new viewing is an excellent primer on the recent recreation of the amendment, and I would recommend it to anyone wanting the new scoop on 2nd Amendment poop.

I would submit you don't even really understand just how much the "self defense" argument in Scalia's decision was made to weigh into future decisions. Justice Alito, in the McDonald decision, even starts off his own decision by stating "this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home." Moreover the handgun ban was not passed by the US Congress, it was passed by the DC Council, which does have rules put on it by the US Congress as the recently arrested Mayor Gray will attest, but this law was in keeping with ordinances that were passed in towns in federally administrated areas of the west throughout the 1800's. Justice Scalia's majority decision hinged on DC's "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense". This ruling is more in keeping with a "natural right" to self defense (which goes back to English Common Law) than in keeping with the actual wording of the 2nd Amendment as a whole, even with the due process clause of the 14th. Essentially if you apply the 14th to the 2nd then you have a choice to make. You can disregard the 14th Amendment's due process clause to the second clause of the 2nd Amendment, as was done because of the wording of the first clause in Presser v Illinois and Miller v Texas, less than 20 and 30 years after the 14th Amendment was ratified. This is done because the first part of the amendment shows that the states have a clear right and duty to regulate their militias. Clearly, this was the favored method historically which is all my blog says. I will state that a key part of any "well regulated" military group is a uniformity in their weapons. I doubt many founders would take issue with your state handing out weapons and drilling you once in a while, as was the case in early America. With a standing Army and National Guard we don't really have a need for it though outside of a Red Dawn situation.

I'll probably write a longer critique of your argument. Mine still stands as correct though as it has been a recent movement of the right to get the first clause to stand alone, while historically this was clearly NOT the case as you can see from the court decisions above. It has been understood since the ratification of the 14th Amendment in 1868 that the 2nd Amendment limits the power of the federal government as the decision in United States v Cruikshank stated "The Second Amendment...has no other effect than to restrict the powers of the national government." The last major gun case before Emerson was United States v Miller in which the unanimous decision stated "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Clearly the first clause impacted the second in 1939, unlike 2011.

Scalia even wrote in 1997's Printz v United States that the new tougher Brady Bill was unConstitutional because "We have thus far discussed the effect that federal control of state officers would have upon the first element of the "double security" alluded to by Madison: the division of power between State and Federal Governments." He made the argument that the federal law forced the states to enforce the law. Why would he argue such a thing instead of just stating the people have a right to bear the restricted arms? In 1997 the court did not have far right wing Justices Roberts and Alito who live to reinterpret the 2nd Amendment.

I guess in the end the most convincing piece of evidence for Scalia's own understanding of the Second Amendment is Scalia. "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem," Scalia wrote. "That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct." What the right wing has done instead is to declare one half of it extinct.

My blog attempted to show an early understanding of the 2nd amendment and the context with which it would be viewed as historical narrative. Your own closing argument couldn't have been more prescient. Much like your ACLU argument, I'm pointing out that the right wing is attempting to get back to the founders on everything BUT the 2nd Amendment. Is it revisionist history? I'm not sure because our founders were not monolithic, so I'm sure there was a movement to allow for sub-state insurgencies by more than one founder. Is it a conspiracy? I don't think anyone who has read a newspaper or the court decisions of the last 100 years would say it is. To be a conspiracy you have to be quiet and small with a lot of power. It's a pretty large movement based on the number of NRA stickers I see daily. There are entire colleges being started just for this and other right wing causes. I'm glad it got you thinking though, and I don't begrudge your very current reading and understanding of the amendment. As the DC and Chicago bans were 5-4 votes, whereas the earlier cases were generally much larger decisions, I think the issue is very much alive today.

What Does the 2nd Amendment Really Say?

There has been a big move among the right wing of this country to abolish the reading of the 2nd Amendment. Just so we're all clear the 2nd Amendment, in full, 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."

You're saying "Ragin' man, I know that. Keep and bear arms. I get it." Well, you've already missed the point. Our "Founders", who have become increasingly deified and monolithic in recent right wing cultural movements, wrote a precursor to the statement about keeping and bearing arms.

"Yeah, that thing about a militia. What does this have to do with the National Guard Ragin' man?" I'm glad you asked because it has almost nothing to do with the National Guard. In an effort to make themselves seem important, and add a little esprit de corps, the National Guard has promoted itself as the natural outgrowth of early militias in the United States. This is only partially true, and covers up an existing truth: a lot of National Guards are not even their state's militias.

I was born and raised in Illinois. My father was in the Army Reserves and my brother was in the National Guard. My other brother and I never served in either of these institutions, but we were every bit as much the members of Illinois' militia.

Article XII Section 1 of the Illinois Constitution states:

"The State militia consists of all able-bodied persons residing in the State except those exempted by law."

Why would this be the case? Illinois has a National Guard, so what is the purpose of this militia? It's a vestigial article that is necessary given the writing of our federal Constitution. War to our founders was something completely different than it is today. You only need to look at the role of the Army as far as the Constitution is concerned to see what the role of an Army was.

Article I, Section 8, Clause 12 states Congress shall have the power:

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"

Sounds reasonable? Well then why does Clause 13 state:

"To provide and maintain a Navy"?

Obviously the Army was supposed to be a short term proposition, whereas the Navy was going to be long term. The writers of the Constitution lived at a time when the United States was separated from the military powers of the world by quite a distance. Essentially the Army of a free state was a defensive mechanism only. The Navy was necessary to secure trade against piracy and other sea faring nations. There is also an English distrust of standing Armies, but for the purposes of this we'll just all accept that there is a pretty good basis to assume the founders didn't envision them.

How does this lead us back to the 2nd Amendment debate? Well, the militia was obviously a concern of the founders since they had made no provision for maintaining an Army. They clearly saw a need for it to be "well regulated" and understood that it had a place in a "free State". Why would they think this?

Well it's important to note that the Constitution was ratified in 1788, 12 years after the Declaration of Independence and 5 years after a the peace treaty ending the Revolutionary War. The previous form of government, the Articles of Confederation, sought to keep the status quo of the colonies along with stopping what were the reasons behind the need for independence. What was the status quo? Well, it's important to understand that each colony was started for a different reason. Georgia was started as a debtor colony, Maryland was for Catholics, and New York was the spoils of taking from the Dutch. It became apparent that the decentralized movement that led 13 colonies to win independence, but left Canada to the British, was an ineffective form of government. How could it? Who would help a nearby state that was made up of people who couldn't even hold office in their state out of the kindness of their heart?

What came out of this realization were calls for a constitutional convention, which featured several competing views on how the government should be formed. Glenn Beck assures us that our founders were a monolithic group who agreed on the nature of the new nation, but that was not the case. It was not even the case on what this new Constitution really was. James Madison thought the separation of powers guaranteed freedoms to the people, but his close friend Thomas Jefferson lobbied for the inclusion of guaranteed rights.

Among these guaranteed rights was the ability to overthrow the government should it become too tyrannical. This war would not be made by militias as they are generally composed today. It would be made much like our Civil War was carried out, by states who resolve on their own to take on what they viewed as an overstepping of power by the federal government. The colonies had done the same to the King in England by voting for and signing a Declaration of Independence, not by simply running a guerrilla campaign against the King until he was unable to project power onto the colonies.

Now, if we all agree that the militia is to be run by the individual state and that it is an important defensive function of the state, then what does that say about the 2nd Amendment's reading by the right?

Well, if we are to suppose that a "free state" has a "well regulated militia" if we take away the state's ability to determine what the makeup of their militia will be, we have become, at the very least, an unsecure free state.

"Sure Ragin' man, but how does this apply to today?" The representatives of the people of the District of Columbia attempted to regulate their militia by denying handguns to it's citizens. Their reasoning can be called into question by anyone on either side of the debate, but the necessity of a well regulated militia to security of a free state cannot, if you are to believe the Constitution.

Justice Antonin Scalia was not informed of any of this when he wrote "We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," because if he had he would understand that the purpose of the 2nd Amendment states clearly that it is up to the state to decide the makeup of their militia.

I watch a lot of right wing news sources, and I can't believe the guy who wrote that is statistically likely to be liked by this lady: