On Guns, Scalia is Right For Once, and Obama Agrees

Keith Olbermann declared Supreme Court Justice Antonin "Nino" Scalia the "Worst Person in the World" on the Thursday, June 26 edition of MSNBC's "Countdown." What got the host up in arms was the recent Supreme Court decision that the Second Amendment confers an individual right to gun ownership.

I'm tempted to give Olbermann a pass on this because I'm a fan and he made a midlife career switch at age 40, from sportscasting to news/commentary. Also, me no Nino aficionado.

Still, Keith's reasoning is so specious in this case that it merits what he calls a "Special Comment."

Here he is seriously (and breathlessly, as is his stylistic wont) explaining what the 27 words of the Second Amendment really mean:

"Despite years of fog created by the NRA and right-wing organizations, {this} isn't very complicated: for the purposes of forming a state militia, you're entitled to keep and bear arms. Obviously, those would have to be {the kind of arms} in 1791, when the Bill of Rights was passed; the musket, the wheel-lock, the flint lock, the 13th century Chinese hand canon. Stuff like that.....Scalia simply decided that the militia part of the Second Amendment is some sort of quaint anachronism that he could happily ignore."

That's mildly amusing, but ancient implements of destruction have nothing to do with the amendment's validation, or lack thereof. After all, the First Amendment applies to new forms of communication the Founders never had, from radio to TV to the internet. Keith's the one trying to turn the document into a "quaint anachronism."

Or consider the Fourth Amendment. I think warrants for search and seizure should be required for technologies like brain scans that read thoughts, or heat-seeking lasers that can be aimed into homes. (In fact, I say brain scans are also a violation of our Fifth Amendment right against self-incrimination.)

Don't laugh at such ideas. Telephone wiretaps, after their invention in the late 1800's, were employed for decades before passing constitutional muster. The permissable use of modern advances is a continuing debate. Like so many issues, it's never fully adjudicated.

My broader point is that the way things were "when the Bill of Rights was passed," Olbermann's official yardstick, is hardly persuasive to those of us who believe in the concept of a living Constitution.

As for "militia," everyone accepts that when the language is understood, it carries weight. Linguistic history suggests that the complete context of the word in 1789 corresponds to all of the people (as evidence, see the Virginia Declaration of Rights, Article 13, 1776) rather than a select group in national guard units. The Bill of Rights is about each of us, not some of us.

And by the way, Scalia didn't "happily ignore" the militia question in his 64 page majority opinion, as Keith says. The Justice went on and on, as did his colleague John Paul Stevens in dissent.

It appears Olbermann's analytical skills, constitutionally speaking, run toward the Cliffs Notes variety.

I, on the other hand, side with Sanford Levinson of the University of Texas and Laurence Tribe of Harvard, two among many who concur with the Court. Their extensive research leads the acclaimed liberal scholars to a determination that, as the NY Times put it, "the meaning of the amendment's text, history and place in the structure of the Constitution" compels an individual interpretation.

Neither law professor worships at the alter of a stagnant right-wing pool. Barack Obama surely doesn't, and he shares their sentiment.

It should be acknowledged that while the Supreme Court record on the amendment is extremely sparse, a collectivist interpretation (anti-individualist) has been the conventional view within the federal courts and academia for much of the past century. Before that, generations saw it differently, and for an obvious reason.

Individuals have bought and owned guns -- legally -- since the Thirteen Colonies. Still do. This explains why the Court's latest ruling has elicited a snore across the land, lawyers excepted.

The practical effect today in any household is the status quo. Your gun is kosher if it's kosher, same as yesterday, and everyone knows it. That score hasn't changed.

Far more relevant than the right to bear arms, plainly, is defining the parameters of that right: rational gun control laws.

I'm a supporter (along with most Americans), starting with my opposition to concealed weapons. There are, without doubt, too many guns on our streets. We were a tiny nation of fewer than 4 million citizens 220 years ago; today we're 300 million strong and growing, largely urban and suburban, packed together. This reality isn't going away.

I believe in background checks, banning assault weapons and cop-killer bullets, closing the gun show loophole.

These are common sense measures meant to distrupt criminal activity and save lives, not impact the rights of the law-abiding, whether in Miami or Cheyenne. That's a good thing.

The U.S. finally outlawed the sale of firearms through the mail in 1968, in the wake of Lee Harvey Oswald having his rifle shipped from Chicago to Dallas to assassinate John F. Kennedy in 1963. It was a simple and smart idea that took years and drew fierce opposition.

Little has been done since, and additional safeguards are overdue.

Nothing is absolute. Not the right of free speech -- the first amendment. You can't libel or slander, for example. It stands to reason that the second amendment isn't absolute, either. In fact, the entire Bill of Rights is compatible with regulations designed to ensure civility. Society requires structure to function smoothly and safely for all. The conservative Scalia seems to agree:

"It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.....The court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." {Emphasis added.}

If the Second Amendment has become so problematic that wise constraints don't work, then we need to supercede it -- in the manner the Founders prescribed. A decent case can be made. Of course, a replacement amendment will be damn difficult to push through, and those opposed to guns can't just flippantly cut the existing condition out of the Constitution by declarative fiat (despite how Bush-Cheney conduct business).

That's why fighting legislatively remains the way to go when it comes to curbing gun violence. Any approach, however, requires careful treading.

Former Massachusetts governor Michael Dukakis is cited for the following comment during the 1988 presidential campaign: "You know, I do not believe in individuals owning firearms. Only the police and military."

I can't say if the quote is accurate or apocryphal, but think of it: only the police and military? That kind of logic cost him an election. It's also not reassuring in a country that now sees other constitutional liberties getting nibbled away, from warrants to habeas corpus.

And I don't even own a firearm.

Comments

[Cathexis]

I'm not seeing a conflict.

1. The reference to a regulated Militia seems clear and I believe it is a stretch to assert that the right extends to anyone beyond the militia.

2. Some armendments will be extensible. Others will not. Communication appears extensible, operating on principles rather than details. Back in the 1700s, a citizen militia was a viable counter-active force for government excess. Does anyone reallky believe that it remains so, today?

3. I can't own a working tank or a nuclear warhead. These items are so destructive and dangerous to society that their use is restricted to the military. We already have the precedent. So why are these not covered by the 2nd amendment?

There is no attempt to abrogate existinfg rights -- it is an attempt to gain privileges that are not appropriate or merited. Legalized guns means more gun injuries and deaths.

Guns don't kill people; people with guns kill people.

[DoveyJudith]

"I can't own a working tank or a nuclear warhead....their use is restricted to the military. We already have the precedent. So why are these not covered by the 2nd amendment?"

Because no right is absolute, that's why. The First Amendment right of free speech isn't absolute, either. You can't libel or slander someone, for example, but that doesn't mean that free speech is therefore not a right.

As Scalia wrote of the Second Amendment: "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

[meanguy]

no, cathexis. it's NOT a stretch to assert that the right extends to anyone beyond the militia...the framers themselves made that assertion, repeatedly. if you don't like the amendment, then get the process going for repeal...another wise move by the framers.

what part of 'the right of THE PEOPLE' do you not understand?

[adamsmith]

Keith Olbermann-the Jerry Springer of political news shows....................

[Bobrobert]

Silly rabbits.

Remember - big brother is not always right.

Trashing the constitution would be easy with a police state armed and no one to combat them with anything but words.

Get rid of guns - get rid of the freedom of speech - silly rabbits.

Want to make a bet at which dictators have NOT disarmed the public - bet you cannot name one!!!

Remember to vote all.

:-)

PS ***over 4110 killed in Iraq war, over 30,333 wounded in Iraq war***

[Cathexis]

Yeah! The only thing keeping us from a police state is if we can get every yahoo with a trigger finger to own a handgun. That will keep the guys owning the body armour, automatic weapons, tanks, etc. quaking in their boots.

Riiiiiight.

[strawberryjulius]

The shooters in the Columbine Massacre had guns that we're legally obtained by adults. From Wikipedia"Harris and Klebold acquired two 9 mm firearms and two 12-gauge shotguns. A rifle and the two shotguns were bought in what was perhaps a straw purchase in December, 1998 by a friend, Robyn Anderson, who had purchased the shotguns at the Tanner Gun Show in December, in private sales from individual(s).[38] Harris and Klebold later bought a handgun from a friend, Mark Manes for $500."
Even reasonable gun laws did not prevent this tragedy.

[meanguy]

and a ban would have?

[3fingerbrown]

Couple the wording of the second amendment with Jefferson's warning that the tree of liberty should from time to time be refreshed with the blood of tyrants, and you can see what the ratifying states were driving at when they insisted on the right to bear arms. They feared a despotic central government imposing its will on recalcitrant states and wanted the ability to meet force with force.

But the founders had no way of knowing that the federal government would become so powerful that it could impose its will without firing a shot on American soil, by manipulating the media, economy, legislators, and courts. Because the tyrants have perfected these methods of dominating us without the use of firearms, the second amendment should be replaced with a broader protection of the rights of states and individuals.

[arvay]

Nonsense. The only thing that will strike fear into our home-grown dictators is the knowledge that 200 million guns are out here. Let them ponder invading Iran, and the response to the resulting economic collapse here. Will the American army fight it's own citizens? Let Bush roll the dice and find out.

Protection of rights is always backed up by firepower.

[robynuva]

Worked for Ghandi without killing people.

"There are many causes I would die for, there is no cause I would kill for." Ghandi

[3fingerbrown]

Hey, arvay: I didn't say that a new second amendment should do away with the right to bear arms. I said a broader protections should be put in place, protections against the federal government having too much say in just about every sphere of American life, not just whether or not someone is allowed to own a gun.

That said, your faith in our righteous indignation is touching, but I don't know. Those same 200 million guns were out there in the '70s when there were lines snaking around the block to buy a gallon of gas, and when Vietnam was dragging on, and when Nixon was running roughshod over the Constitution. They were out there when Bush lied and lied and lied to us, and when gas hit $5 a gallon in some places, and when America was humiliated by its failure to bring in bin Laden after 8 years.

If those things weren't enough to inspire wholesale rebellion, I'm not sure if it'll ever happen. Most of us are too self-centered and morally lazy to risk our necks for something happening overseas, and we've become too insular for the wholesale passive resistance of Ghandi, supposing for a moment that there was a Ghandi among us.

If I were advising Bush, I'd say go ahead and roll the dice and invade Iran, but just to be on the safe side do it on the night the new American Idol winner is announced. That way, no one will notice.

[GayIthacan]

Excuse me - but if the 'opening clause' refers to the 'subordinate clause', then it is redundant and unnecessary, since YOUR interpretation would be satisfied by mewrely the subordinate clause standing alone.

The fact that there IS a justifying clause (the only amendment possessing one) tells THIS logical person that the founding fathers meant that individuals may keep and bear arms UNDER CERTAIN CIRCUMSTANCES - being a regulated member of a state militia being that set of conditions.

[Bobrobert]

You seem to lack common sense.

Logic is for politicians.

Common sense is for voters.

Keep your logic.

I will keep my gun.

Remember to vote all.

:-)

PS ***over 4110 killed in Iraq war, over 30,333 wounded in Iraq war***

[DanielinLaLaLand]

You're applying 2008 conceptions to 1789 conceptions.

Also, there were no local cops to tell people how the cow ate the cabbage. Every able-bodied citizen who was recognized by the Constitution was "the militia." Thus, since a militia is necessary to operate a free state, it's the right of "the people" to own firearms. "The people" means "the people." Every right enumerated in the Constitution from beginning to end is a right given to "the people." Obama sees it this way, wise legal scholars, too, even liberal legal scholars.

If we believe as a society that the 2nd amendment is nothing but an anacronism today, and that only the cops and the military should have the right to own guns, then we should get rid of it, but as Williams points out, we don't get rid of it by merely reading it out of the Constitution. That approach encourages others to "use the same means in purging the parts of the document they don't care for," and other parts of the sacred text are already hanging by a thread, you know?

[meanguy]

sorry to upset your little applecart, but ...ask the framers:

"The great object is, that every man be armed."
-- Patrick Henry

"... who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers."

-- George Mason
"... whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them..."

-- Richard H. Lee
Historical Quotes About Second Amendment
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.
-- Patrick Henry
"To disarm the people (is) the best and most effectual way to enslave them."

-- George Mason


"... who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers."

-- George Mason


"... of the liberty of conscience in matters of religious faith, of speech and of the press; of the trail by jury of the vicinage in civil and criminal cases; of the benefit of the writ of habeas corpus; of the right to keep and bear arms.... If these rights are well defined, and secured against encroachment, it is impossible that government should ever degenerate into tyranny."

-- James Monroe

[acv]

This is a very interesting view. My thinking on this has been disorganized and you were able to put some reasonable order. Thanks.
"I don't know if the line is accurate or apocryphal, but think of it: Only the police and military? That's bone-chilling in its implications for a country already at risk of losing constitutional liberties, from warrants to habeas corpus." I totally agree!
I favor gun restriction but there are other issues. Much of the past ten years congressional leadership and the president are fundamentalist Christian. These are the people who take the book of Genesis give it another name and with the power of their convictions think it's a great idea to make this required reading in public schools. Belief in the bible trumps anything else, or put another way; they believe in Creationism and a literal interpretation of the bible as much as they believe that gays threaten their way of life-style. These are true believers, absolutists and that's, that. They are unable to balance literal biblical scripture with an oath to uphold the Constitution and that's a problem. What"s next, limiting the rights of gay? We nearly escaped an era of lawmakers more loyal to bible then to the Constitution. If that happened again we might enter another era of intolerance, possibly much worse then this. Makes me wonder, might I someday need a gun? I don't know but I do not might right are a little less certain.

[4wehttam]

Leave Keith Olbermann ALONE!! After all that he has been through! Leave him ALONE! He's a HUMAN!!!!

[S1m0n]

Have the figured out yet that la Raza and al Jihadi have the same right to armed rebellion they do?

[MuchMadness]

I find it difficult to believe that individual self defense or individual resistance against governmental oppression was the primary reason for the Second Amendment, as many gun rights advocates assert. The framers probably did regard the right to bear arms as an individual right, but one that could at least be regulated by the states.

It is a very badly worded amendment. The ambiguity may have been deliberate. Making the Constitution recognize a right of at least some citizens to keep and bear arms would have reassured the states that their ability to resist invasion and put down insurrections would not be completely dependent on the new federal government. On the other hand, making those state militias subject to be called by Congress into the service of the United States clearly sent the message that the federal government would have considerable power.

Another reason that may explain why the framers worded the Second Amendment they way they did is that they preferred a militia system over permanent standing armies. There was the memory of abuses by British troops during the colonial period. Also, there was a concern that if states were allowed to maintain standing armies staffed with professional soldiers, that would be a threat to the viability of the federal government.

Standing armies are necessary in the modern world, but their existence also presents problems. If we did not have a military industrial complex, would our troops be at war in Iraq right now?

[SmackwaterJack]

Great Post Mr. Williams, and Spot-On.

[LeftCoaster64]

As is evident by these posts, people of good will can disagree on this one. As a mostly-liberal, never-owned-a-gun contributor, I think that the ruling allows for legislation to put reasonable limits on gun ownership. That's fair and should work since the bad guys will find a way to get guns if they really want to. And I agree, with the way this country is going, I don't think I want just the police and military to have legal access to arms.

[djkrlsn]

The problem here is reasonable according to whom--for instance, for me saying felons and people with serious mental illness should not have guns is definitely reasonable (as are bans on chemical, biological and nuclear weapons) but bans or severe on common firearms are unreasonable (like Mayor Fenty trying to keep a ban on handgun designs that many police and civilians carry).

[unitron]

Pretty much everywhere else in The Constitution when it means the populace as a whole it says "The People" and when it means individuals it says "Persons".

[Herrington]

'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, being necessary to the security of a free State,' Is a preface to establish the justification for what follows, the operative clause, 'the right of the people to keep and bear Arms, shall not be infringed.'

The clause 'the right of the people to keep and bear Arms, shall not be infringed.' could stand alone. It is the fact that is not alone, but accompanied by the preface that creates an ambiguity and results in argument.

Would not it have more clear and easier, if the intent was for only Militias to have arms, to state that the right of Militias to keep and bear arms shall not be infringed and omit 'the people', variously construed as being anything from individual citizens to any variety of the collective body up to and including the nation?

Perhaps we need not dwell so much on what the meaning is and instead consider what it cannot be. It cannot be that only militias should have guns, otherwise the distinction between 'militias' and 'the people' would not have been made. Whatever distinction was intended, it is absolutely clear that there was a distinction intended or the two different terms would not have been used.

[Herrington]

(Continued)

The term regulated could not have meant controlled by a superior authority, as the assumption is that the militia stood as a last bastion against English like centralized tyranny. So in a sense, regulated is a misnomer. A well provisioned or equipped militia might have been more pertinent to the stated objective of retaining the right to keep and bear arms. Indeed, provisions and equipment are a necessity for a well regulated militia. The term regulation then might bear more on the first amendment and the freedom of speech and assembly to establish the regulation implied here.

The phrase, 'the people', cannot mean the government or majority or even activist minority in control of government or else this amendment would not exist, the government already being charged, elsewhere, with the common defense. Whether the people means one person or one hundred should not be of consequence unless the amendment had said the right of more than one person to keep and bear¦

[tobergill]

I find it strange that a right can be classified as not absolute. If it's not absolute isn't it rather some kind of privilege, granted by the powers that be to whomever they please? I fthe people have right to bear arms, what's the basis for regulation of that right?