Month: May 2015

The Second Amendment does NOT protect private gun ownership

…yes, if you read the HP you’ve seen that title before. For our third post in the series on the Bill of Rights, we’re reaching back to one of the first posts we put up in the infancy of the site. It was short—we used to be like that! The topic is still unfortunately pertinent today. We will do a little updating as we go along:

Let’s go out on a limb here to state the obvious.

How does it read? “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.”

A well-regulated Militia. Not a well-armed citizen.

We have to agree with ourselves here. But before we can analyze, we have to really understand. The amendment is written in that cart-before-the-horse way that plagued 18th-century writing in English. If you break it down, it says “Since the militia is necessary to national security in a free state, the government cannot forbid the public to keep and bear arms.”

This is such a time machine window into the state of the early U.S. We had no standing army. We had only volunteer state militia for our national defense. The key words are “free state”: rather than create a standing army, which was only ever used in Europe to oppress the people and defend the monarch’s absolute power, the U.S. wants to continue to rely on volunteer militia.

But what if the federal government tries to get around this protection of the people by forbidding them to own guns? That way, they can’t form militia, and the federal government could create an army after all, arm it itself, and be tyrannical.

The answer is to forbid the federal government from outlawing private gun ownership. As we said back then…

This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your arms so that you can serve in the militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.

Now, we’re not a strict-interpretation-of-the-Constitution people here at the HP. We believe the Constitution is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.

That is, the Second Amendment has no meaning outside of military service. It’s ironic that most strong supporters of expanding carry laws and gun ownership are often very anti-military (official U.S. military, that is). They want guns to protect them from an attack by the U.S. armed forces that they feel is imminent.

 The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.

There are times when we wish the Founders had been more specific, but this is not one of them. The Second Amendment is clearly about military service. It cannot be read loosely to apply to anything else—a new constitutional amendment would be necessary to do that. Until that new amendment is ratified, we will continue to honor the Second Amendment as it is written.

Next time: another military amendment

What does the First Amendment say?

Hello and welcome to part 2 of our series on the Bill of Rights. We’re moving into the First Amendment here. It’s the celebrity Amendment in the Bill of Rights. “First Amendment rights”, “my First Amendment rights”—these phrases are like “Washington crossing the Delaware” or “Don’t fire until you see the whites of their eyes”: famous, oft-repeated, but often difficult for the people saying them to really explain. What are our First Amendment rights?

Let’s read the text of the amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What is “an establishment of religion”? A state religion. The FA says that Congress (the legislative branch of the federal government) cannot make any religion the official state religion of the United States. A state religion is supported financially by the federal government of a nation, which also puts barriers in the way of other religions to prevent them from gaining traction. In the 18th century when this amendment was written, every kingdom in Europe had a state religion. Britain’s was Anglicanism. The Anglican church received tax support and if you were a member of another church it was hard to get a job in the government. Go back a century to the 1600s and it would be illegal to be a member of any other church. “State” religion is endorsed by the government, and so the head of the government—the monarch—is the head of the church. Henry VIII created the Anglican church when he made himself, not the Pope, the head of the Catholic church in England. An English person who rejected Anglicanism was rejecting the authority of the monarch, which is treason, which is a capital offense. The Puritans and Pilgrims left England because they could not accept the Anglican church without major reforms, and refused to worship in it as they were told to. This was political treason and made them criminals.

By rejecting the concept of a state religion, the concept of the head of state (our president) being the head of a church, and the concept of forcing people to either belong to the state-approved religion or stand trial for treason, the Framers were making a bold and revolutionary stand that went directly against everything the great European powers had fought for during the Thirty Years’ War. We tend to think of a state religion as obviously contrary to democracy, but European powers would not reach this conclusion for over a century, and in Europe the old state religions are still powerful. In France, non-Catholics are rare. In Britain, Anglicanism is the norm. Even people who don’t practice their religion are born into its culture, which by now is indistinguishable from the socio-political culture to them.

Finally, this statement is saying the U.S. government will be completely civil. There is complete separation of church and state. The federal government will play no role in the religious life of the country, and no religious beliefs can shape our laws.

Why is “or prohibiting the free exercise thereof” tacked on to the first statement? Of course this is all one sentence, and makes more sense as one sentence, but we had to pull it apart to discuss state religion. This phrase is important on its own, though: it doesn’t just reiterate the main message that there is no state church, but also forbids the federal government to outlaw any religion. Again, this was radical for the time. In Europe practicing any religion other than the state religion was heresy and treason. The U.S. is not only saying it won’t impose religious uniformity by adopting a state religion, it’s saying it will not just allow but protect by law the proliferation of religious practices.

This was a big deal in a country that mostly hated and feared Catholics. If Congress had decided to outlaw Catholicism in 1787, most Americans would have been very supportive. But the Framers are making an enormous commitment to true democracy by saying no religion will be outlawed in the U.S.

What does it mean to say Congress will not abridge the freedom of speech, or of the press? This is the most famous part of the celebrity Amendment. Freedom of speech—if you asked Americans to name one phrase that sums up all our freedoms, this might be it. It’s so important that the concept and definition of “speech” has been expanded over the centuries to include clothes, tattoos, parades, art, and other non-mouth-moving activities. In 1919 the Supreme Court decided that some kinds of speech are indeed illegal; any speech that endangers other people is not protected (this was the case that gave us the famous example of shouting Fire! in a crowded theater when there is no fire; someone who does that will be arrested). But that decision was overturned 50 years later because Americans have identified themselves so completely with freedom of speech that we found a way around the problem of endangerment (that ruling said that only speech that creates a dangerous situation faster than the police can arrive to mediate it is illegal).

Again, this amendment is radical. No kingdom in Europe allowed its citizens to criticize the monarch, the government, or the state religion, without punishment. After nearly two centuries of religious war and civil war, Europe cracked down hard on anyone who tried to stir up trouble. But the Framers believed Americans could have freedom of speech without abusing it. Libel laws were maintained, of course; we never said you could lie about someone and not be punished if they choose to prosecute. But expressing an opinion would never be illegal in this country.

Isn’t “the press” synonymous with speech? It’s just speech that is printed rather than spoken aloud. But the Framers specifically included the press so they could protect actual printers. Again, the way to start trouble in Europe for nearly 200 years had been to print pamphlets and broadsides criticizing the government and/or church. And for nearly 200 years European powers had punished rebellion by punishing not just the authors of these documents but their printers—men hired to put paper through a printing press who had nothing to do with what was written. The Framers were protecting printing presses, publishers of books, pamphlets, and broadsides as well as newspapers, as well as the authors of all these items. In an age where a book that displeased the government could get not just its author but its printer arrested, this was an important addition to the amendment.

Why protect the right of the people peaceably to assemble? Once more we think of the time the Constitution was born in. In pre-modern Europe, people did not gather in large groups. It just didn’t happen in the course of normal human events. The vast majority of people lived in small villages, where there weren’t enough people to make up large crowds. The only way a large crowd could gather was if there was trouble: someone stirring up the people and urging them to leave their villages and meet in one place, usually to protest the government. These gatherings quickly turned into mobs, and were usually violent. In the cities, people could gather in large crowds but were prevented by the watchful eye of royal authorities from doing so, for the same reason. There was just no acceptable reason why any large crowd would gather in that period. The Reformation period was characterized by mob after mob after mob being put down violently by government forces, causing almost incalculable losses of human life and capital.

So when the Framers said Americans had the right to gather in large groups, they looked like they were inviting trouble. That’s why this part of the amendment is the only one with a caveat: the people must assemble peaceably. Colonial America had a terrible record of mob violence, often sparked for no good reason (see our post The Boston Tea Party and a tradition of violence for more on this). It seemed like the last place where you would be safe allowing people to gather in large groups. But part of freedom of speech is freedom of assembly—people have to be allowed to talk together. Knowing the fondness for mob violence that Americans had, the Framers offer the one condition in the amendment by saying Americans can gather together but only if they are not violent. They didn’t say speech was free as long as it didn’t criticize; they didn’t say printers could print anything as long as it didn’t call for violence. But they did restrict public gatherings to peaceful purposes.

What is petitioning the Government for a redress of grievances? This means that Americans can criticize the government, and as you understand by now, this was not on the table in Europe. At a time when Europe was trying to end its centuries of strife by cracking down hard on any public expression, America was inviting its citizens to talk to their government and even make complaints. A redress of grievances is making something wrong right. If someone has injured (grieved) you, they must make it right somehow (redress it). If the government does something wrong, if it violates the Constitution, Americans have the right to demand that the government stop that violation and then make up for the damage it has done. This is two rights in one: the right to demand that the government obey the Constitution, and the right to demand repayment for any violations of the Constitution. This keeps the government honest, and sharpens people’s love for and commitment to the Constitution.

That’s a lot! But then this is the star amendment that, for most Americans, completely sums up who we are and how things here should be. You wouldn’t think another amendment could rival the First in importance, and for about two centuries none did. But in the late 20th century, the Second Amendment was wrested out of obscurity and thrust into the spotlight, and we’ll go over that amendment next time.

Next time: the very clearly military Second Amendment

What’s in the Bill of Rights?

It’s time for another series! We’ve decided to take up the Bill of Rights and give it a good going-over, since it seems that when people argue about preserving “the Constitution” they are only ever talking about the Bill of Rights section—the first set of amendments to the Constitution.

So let’s get right into it. For curiosity’s sake, and to give a sense of what was originally proposed, we’re going to start with the first two of the 12 amendments presented to the state legislatures for ratification; the only two that were not ratified.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

…Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

—The closing phrase of the first paragraph (from the short preamble) is interesting: these amendments are meant to “extend the ground of public confidence in the Government, to best ensure the beneficent ends of its institution.” In other words, the amendments we know as the Bill of Rights are meant to make Americans more confident in the federal government because they prevent the federal government from ever overstepping its powers and becoming tyrannical. Yet today, most Americans seem to see the Bill of Rights as a weapon to use against a federal government that can only ever be tyrannical: instead of assuring us that our government will never be unfair, the Bill of Rights panics us that our government will always be unfair. The Bill was meant to put fears of tyranny to rest, but now it only ever stirs them up.

On to the first article, which was not ratified. It deals with representatives to Congress, and tries to anticipate the problems that population growth might provoke as the nation grows. The men drafting our Constitution and its amendments had this problem on their minds at all times. It was clear the nation would only experience exponential growth as it took over the continent from sea to sea. They tried to set up frameworks that would work in 1787, when the population was already a little unmanageably large, and work in 1887 or 1987, when they imagined the population to have soared far beyond their imagining.

The public imagination at the time, however, rejected this proposed amendment as impossible. One representative for 50,000 people? That wasn’t right: how could one person fairly and effectively represent so many? The other problem was this: if this amendment had been ratified, today we would have over 6,000 Representatives in the House. As it is, we have 435, and each House member represents over half a million people (about 650,000). When your population grows to hundreds of millions, it’s impossible to give them anything close to effectively individual representation.

When you think about it, that’s why political parties really took off. Parties allow thousands or millions of people to become one person, adopting one set of beliefs. If you represent 650,000 people and 500,000 of them are Republicans, if you just follow the party platform you will be accurately representing most of your district. You don’t have to try to get to know 500,000 personal beliefs. Early on in our history representatives and the represented figured this out.

Article the second… No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

—This failed amendment says that Congress can’t vote to change its pay during a term. Members can propose a pay change for the next term. To make sense of this, first we have to note that they only change in pay likely to be proposed is a raise. So this amendment says that Congress can’t give itself a pay raise without allowing the people to vote on it. What Congress can do is propose a pay raise for the next session, which allows people to vote on that pay raise: if they approve it, they re-elect the members who voted for it; if they don’t approve it, they elect new members. James Madison was behind this amendment because he didn’t think Congress should be allowed to pay itself arbitrarily without giving the people a chance to approve or reject the changes.

The interesting thing about this amendment is that it was not ratified in 1787—but it was ratified 202 years later, in 1992, as the Twenty-Seventh Amendment.

Next time: the amendment we know best

Sixtieth anniversary of the liberation of Dachau through the eyes of PFC Harold Porter

It’s a horrible anniversary, but all the more necessary to keep because of the horror: 60 years ago in May 1945 U.S. soldiers led by General Dwight Eisenhower liberated the Dachau concentration camp. By the time they arrived, it had been emptied of the living and abandoned by the Nazis who ran it as they fled the approach of the U.S. forces. What was left was enough to permanently impact the soldiers who entered the camp.

The first camp Eisenhower’s men had liberated was Ohrdruf, in April 1945. This death camp is not well-known today like Dachau, but it lived in Eisenhower’s memory, and in General George Patton’s. Lt. Col. Lewis Weinstein, a member of Eisenhower’s staff, recorded the effect of seeing Ohrdruf’s victims on the Supreme Commander of the Allied Forces in Europe:

I saw Eisenhower go to the opposite end of the road and vomit. From a distance I saw Patton bend over, holding his head with one hand and his abdomen with the other. And I soon became ill. I suggested to General Eisenhower that cables be sent immediately to President Roosevelt, Churchill, DeGaulle, urging people to come and see for themselves. The general nodded.

Eisenhower’s written account of his experience is well-known:

…the most interesting—although horrible—sight that I encountered during the trip was a visit to a German internment camp near Gotha. The things I saw beggar description. While I was touring the camp I encountered three men who had been inmates and by one ruse or another had made their escape. I interviewed them through an interpreter. The visual evidence and the verbal testimony of starvation, cruelty and bestiality were so overpowering as to leave me a bit sick. In one room, where they were piled up twenty or thirty naked men, killed by starvation, George Patton would not even enter. He said that he would get sick if he did so. I made the visit deliberately, in order to be in a position to give first-hand evidence of these things if ever, in the future, there develops a tendency to charge these allegations merely to ‘propaganda.’

The evidence of the Holocaust was so unbelievably inhuman that the men looking at it simply could not fully take it in—and if they couldn’t, how could those at home who never saw it themselves believe it?

This is a problem PFC Porter addresses in his letter home to his parents, written May 8, 1945 on the stationery of the former camp commandant. His account is of course not famous at all like Eisenhower’s, but it is equally powerful. “It is easy to read about atrocities,” he wrote; “but they must be seen before they can be believed.” His letter is here, and of course it is almost unbearable to read, but even the sickeningly frank descriptions of what he and his fellow Americans saw at Dachau were weak and helpless shadows of the real thing, as he acknowledges on page 3 of his letter:

Although I stood there looking at it, I couldn’t believe it. The realness of this whole mess is just gradually dawning on me, and I doubt if it ever will on you.

Let’s remember this anniversary and let it remind us of the Americans who wanted to make sure that the whole world understood what the Holocaust was.