Sunday, February 25, 2018

Where Laws Really Don't Reach

I was listening to a Yahoo on NPR discuss "Constitutional rights" with regard to guns, and realizing he doesn't understand the first thing about the Constitution or the 2nd Amendment.

But he's quite sure he does.

The Heller decision did establish an individual right to "keep and bear arms."  It did not establish that as the unfettered right of the fever dreams of fools like the man being interviewed on NPR.  It established a limited right to keep and bear (but not fire!) a handgun, and placed restrictions on what government can do to restrict possession of such weapons (but not usage, a key issue here).  Heller did not apply its ruling to rifles, shotguns, "assault rifles," etc.  All of those are still regulated, and in fact it has taken the passage of laws in the states to make it legal to carry such guns publicly, although I know of no change in the law regarding "sawed-off shotguns" or carrying fully automatic "machine" guns (the whole idea of a "bump stock" is to render a semi-automatic an almost fully automatic weapon).  There are a number of limitations on guns that exist quite comfortably under the 2nd Amendment and have done for decades.  As Mark Joseph Stern points out, "the Supreme Court’s Second Amendment jurisprudence... guarantees only the right to keep a handgun in the home for self-defense."

This is not a Constitutional issue.  It is misunderstood as one by gun advocates:  

Paul Paradis, a Trump supporter who owns a gun store in Colorado Springs, is furious that bump-stocks may be banned.

“Trump can propose anything he wants but it’s got to get through two houses of Congress and the Supreme Court,” Paradis stated.

The bump stock ban will only work if Congress passes a law about it.  But Mr. Paradis is going to sorely disappointed in the courts if that law is passed.

You are allowed to possess as many motor vehicles as you can afford.  You are not allowed to drive them in violation of vehicle regulation and safety laws.  Likewise, you are allowed to own as many guns as you want, with limitations as to type (likewise you can't drive certain vehicles on the road).  You are not allowed to use them as you see fit.  The "militia" in the 2nd amendment (a word I still think Heller simply erased in its decision) meant irregular armies called into service in time of need, rather than the standing army popular in Europe (and despised by the colonists, who also despised the use of the charge of treason against them, a charge usually defined by what the Crown wanted to prosecute.  There is a connection, and a reason why treason is the only crime defined in the Constitution, where its elements are difficult to alter, and the 2nd Amendment, meant to preserve the existence of militias and discourage the existence of standing armies.  The 3rd Amendment is the other part of this triad.  The drafters had very different ideas about these things than we do today.).

This is a political matter, not a Constitutional one.  The NRA was described as one of the most effective corporate/grassroots organizations in the country, and I think that is right.  But notice how seldom Wayne LaPierre invokes the 2nd Amendment, and how often he talks about 'freedom' and 'security.'  He knows how this argument is conducted, and he knows he won't win with a team of lawyers ready at the drop of a hat to go to court and defend a gun owner's 2nd Amendment rights a la the ACLU.  It is also why they are going to be in trouble if their political clout diminishes.

I listened to that, then I found this post by Josh Marshall.  He makes an argument that the current argument on guns is similar to the 19th century argument about slavery, which morphed from slavery as a necessary evil (and the Southern fear freed slaves would, en masse, endanger the lives of white former slaveowners, a fear still reflected in white fear of brown people) to slavery based on race as the way of the universe:

We can see some of this evolution in the speech Confederate Vice President Alexander Stephens gave on the founding of the Confederacy. Speaking of the central role of slavery Stevens said this …

"The new [Confederate] constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the “rock upon which the old Union would split.” He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the “storm came and the wind blew.”

"Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. This truth has been slow in the process of its development, like all other truths in the various departments of science. It has been so even amongst us. Many who hear me, perhaps, can recollect well, that this truth was not generally admitted, even within their day. The errors of the past generation still clung to many as late as twenty years ago."

In retrospect, this evolution seems inevitable. People can’t go to literal or figurative war with an ambivalent commitment. The need for a positive defense of slavery was critical.

In retrospect, I believe Lott’s work and those who built upon it played a similar role in the post-Columbine evolution of the firearms debate. (And to be clear, I’m not equating them substantively. I’m talking about the need for a ‘positive good’ version of pro-gun advocacy.) Indeed, Lott’s first article was published in 1997 and his first book More Guns Less Crime in 1998, just a year before the Columbine Massacre in 1999. Though his first work just preceded Columbine, it filled a critical, necessary role for “gun rights” advocates in the post-Columbine world. The NRA wasn’t always against all gun restrictions. In the 1980s and 1990s, it didn’t oppose some very limited restrictions. That changed over the course of the 1990s, for a variety of reasons. Paradoxically, I believe one reason was the historic crime drop of the latter half of the 1990s. As long as crime seems out of control a lot of ordinary people want a gun to protect themselves, regardless of the larger societal impact, regardless of studies that might suggest you’re more likely to be killed by your own gun than saved by it.

But I think the main reason for this change is that as long as you recognize the basic reality that guns are dangerous, fighting even the most minimal kinds of restrictions is inherently difficult. You need to change the game. You need a theory that is coherent and in line with your goal. Lott’s theory created a logic for that. The problem with massacres isn’t too many guns. It’s too few guns. Guns aren’t the problem. They’re the answer. It was the NRA’s ‘positive good’ argument, comparable to the one pro-slavery intellectuals devised in the 1850s. It’s the origin of virtually every argument the NRA makes today, from arming teachers to the “good guy with a gun”, to the need for permissive concealed carry nationwide.
It's a sound argument, but I think it overlooks how much this is an argument of class in America, not just of emotional or intellectual need.  My neighborhood is across the freeway (about 22 lanes, with service roads.  It's quite a physical and psychological dividing line.) from some of the wealthiest neighborhoods in the city.  My side is not poor, but it isn't nearly as wealthy, and is much more ethnically mixed:  Vietnamese, Korean, Mexican and South American, African American, and white, are the dominant categories.  Across the freeway non-whites are mostly maids and gardeners who arrive and leave again.  When the grocery store a few blocks from me opened, it was a draw to the other side of the freeway dwellers, but they were afraid.  The store had to post off-duty policemen in uniform, and even place cameras on 30 foot poles, to persuade those from across the way it was safe to park in their parking lot and enter their store.  That level of fear as long abated, but it was based on location, on the area around the store, on fear that somebody somewhere wants to take away what they have there.  In all the years I've lived here, the bank robberies (in a bank facility in a grocery store) and shootings (a man who drove to the neighborhood, spent the night in his car, and got up to shoot whoever he could find) have all happened on "that side" of the freeway.  But it is "this side" people have to be afraid of, because....well, because it's how people make sense of their privilege, of their position, of their ability to live in exclusive areas, areas exclusive by property values if nothing else.  Stephens' argument is an argument for class power, for the right to be superior, legally and morally and physically, to others.  It is an argument for hierarchy.

And that is part of the argument for guns:  to be superior in all those ways to the people seen as dangerous.  Stephens wasn't just making an argument for the convenience of slavery to the Southern way of life before the Civil War; he was making an argument for the superiority of wealth over poverty, of power which means someone must be powerless (else where is the power of power?).  The "positive good" argument is always an argument for me above you, for my group being above your group, for my power dominating yours.

The man on NPR representing the "gun culture" (NPR's term) asserted his 2nd Amendment right as he understood it over the rights of schoolchildren not to fear a shooter on their campus.  That right makes him superior to those who don't own guns, who, in his mind, will get shot (he won't.  Everyone knows the hero of the movie doesn't get shot, he only shoots others.).  It makes him superior to the other countries of the world who don't respect this kind of "freedom," a freedom that is illusory, but is purchased in the coin of human lives.  In truth, like the slaveholders of hold, like the Confederacy Alexander Stephens championed, a government dedicated to the proposition of the persistence of the "peculiar institution," he is more slave to his fears than the schoolchildren are to theirs.

They grow up, and go on with their lives.  He spends his time prattling about an idea that is indefensible and inarguable and immoral, having to convince himself ceaselessly it is none of those things, and wondering why the world won't approve him.  Like the people across the freeway, terrified what they have will be lost to fate or foul deeds, he lives in a fear that is constantly finding new reasons to be rekindled, a fear that he is not superior after all.

There is a legal issue here, and a political one, but also a spiritual one:  why are so many people so afraid?  Violence in movies?  Have you seen Asian action movies?  Violence in news?  What country doesn't report on violence within its society?  No, there is a deeper problem, and until we get to that, this problem won't even start to be solved.

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