Armalite’s Depiction of David Wielding a Firearm
Italian officials have recently threatened to seek legal action against the firearm manufacturer, Armalite, for their depiction of Michelangelo’s “David” wielding a large firearm. Many view this as a harmless ad campaign; however, Italian cultural ministers are being a little more matter-of-fact in regards to the matter. In their view it is a provocation. An affront to Italy’s cultural prowess. A prowess that catapulted Europe out of the dark ages and into an age of enlightenment; a time of flourishing intellectualism defined by donnish aspirations. To the Italians this depiction of David wielding a rifle is uncultured and a manifestation of what they never want to symbolize again; a brutish, unsophisticated Europe from olden-times.
Does the advertisement purposely appeal to the impassioned, semi-maniacal lust for firepower that has proliferated gun sales and defined a uniquely American political climate, or on the contrary, is it an alter-ego of the biblical hero, David? An evermore powerful creature. A personification of what it means to be American; a depiction of our evolutionary story and the values that we hold so dear to our hearts. We mustered our fledgling militias into a continental army and beat goliath. Goliath would never return to our shores and the insurance policy was drafted as the Second Amendment to the United States Constitution. We told ourselves, “never again.” It went as follows….
“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.”
With these few, short words, every law abiding American was given the biblical wherewithal to quell the tyrannical beast that could one day terrorize a peaceful nation.
From Musket to Machine Gun
According to Heritage.org…
“Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution-the supreme law of the land-as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a “living document” with no fixed meaning, subject to changing interpretations according to the spirit of the times.”
Part of the problem with the gun debate in this country is the lack of any debate at all. The Second Amendment is the least understood portion of the Bill of Rights, yet it is the most popular and most widely asserted American right, with the exception of the 1st Amendment’s Freedom of Speech. People claim it is black and white… but it is far from such. Few Supreme Court cases have tackled firearm issues, only a handful this century. What were the founding fathers’ intentions when they drafted the Second Amendment?
Judge Antonin Scalia, arguably the most conservative Justice, believes that the constitution is, as he calls it, “Dead.” Scalia is an originalist constitutional scholar. If Scalia;s argument is taken in a literal sense, than the constitution should not be what other justices and scholars refer to as, “a living and breathing document.” Scalia prescribes to the theory that the constitution should not be altered in anyway, a seemingly difficult task considering the fact that it was drafted in an era that is alien to contemporary America. Is a well-regulated militia a thing of the past or has it evolved into the most powerful military in the World? If the intentions of the founders were in fact to arm and support a military and not the populace, why didn’t they say, a “well regulated army of men.” After all, a militia is a call to arms, more in line with civilians taking up arms for their own protection. With all of this in mind, is Scalia’s originalist, constitutional perspective an ingenious constitutional perspective followed by freedom-loving Americans or is it a dangerous bastardization of constitutional law that has gone too far and turned America into an arms depot. Here is his take on the situation:
Justice Antonin Scalia: A Staunch Originalist
ORIGINALISM OR A LIVING AND BREATHING DOCUMENT?
When the Almighty Himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated,” James Madison eloquently wrote in The Federalist No. 37. The meaning of this quote is still quite real and disconcerting almost 200 years later. The Constitution’s powerful lines still give chills to constitutional scholars, historians, and proud Americans, however; in truth, much as Madison spoke of, the constitution is a vague, antiquated document that has been refurbished countless times by political discourse over two centuries. From an originalist’s perspective the Constitution is a confusing, historical incite into the life of early America, designed for later generations to follow explicitly with little margin for change. Others view it as a flexible document that was designed by the founding fathers in order to change with the times. Most would agree, however, that it’s birth was the result of a grand experiment and it’s lines a blue print for all members of the global population who sought or are currently seeking freedom from oppression. During the past two centuries the Supreme Court has maintained a watchful eye over this grand experiment, preserving it’s sanctity, however; the Constitution is currently under attack by originalists, and their contemporary interpretation of the constitution has been lackluster at best. The best example of this flawed constitutional interpretation has been orchestrated by Supreme Court justices on the current Roberts court. One particular justice, Antonin Scalia, has interpreted the lines of the Second Amendment by skewing issues to fit his own personal desires.
This article will first examine the Second Amendment and all of the controversy surrounding it. Next, there will be an examination of the meaning behind the Second Amendment and what a “right to bear arms” truly means. This article will then provide a contemporary explanation as to why the Second Amendment has been, and currently is mis-interpreted and it will examine the problems associated with un-regulated firearm sales and the effect de-regulation is currently having and has had on past generations, and finally there will be an examination as to why originalist attitudes towards gun control in the 20th century are irresponsible and do not take into account important modern day firearm issues.
Before the American Revolution, the British depended upon an implementation and restriction of basic colonial rights. The existence of a standing army within the thirteen colonies depended upon the maintenance of order which, to the British was necessary to collect taxes, much to the angst of the colonists. Due to these unpleasant living conditions, Americans focused their fear and hatred in the direction of the British. Naturally, Americans wanted to restrict standing armies with the creation of a military body that could be called to arms if needed be. “When the new constitution was submitted to the states for ratification, the battle lines were drawn between the Federalists and the Anti-Federalists – the latter believing that a bill of rights was necessary to properly restrain the power of the central government. The Second Amendment specifically addressed concerns articulated by individuals like George Mason at the Virginia ratification convention: George Mason said, “The militia may here be destroyed by that method which has been practiced in other part of the World before; that is, by rendering them useless – by disarming them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them.” The Anti-Federalists’ main concern during the Virginia Ratification Convention revolved around the idea that Congress could allow the state militias to dissipate by neglecting to provide them with firearms. The Convention sought to provide each state with the power to provide it’s militia with firearms, unrestricted by the Federal Government. At no time during the Convention did any of the delegates argue that the average American had an individual right to own or bear personal firearms. As a result of this convention, James Madison, drafted his own proposal. It read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
The Virginia delegation differentiated bearing arms from being “trained to arms,” Another proposed clause for the Bill of Rights sought an exemption for “any person religiously scrupulous of bearing arms,” provided that that person make “payment of an equivalent to employ another to bear arms in his stead.” One could be trained to use a firearm, and one could own a firearm, but one could not be forced to serve in a militia (i.e., “bear arms”) if he conscientiously objected. However, if he was to forego physical service, he had to contribute his share in another way. It is impossible to imagine how bearing arms in someone’s stead had anything to do with personal self-defense. The Rhode Island convention also asked for a Bill of Rights that, in part, also recognized the importance of bearing arms: “That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.”
The Virginia convention was clearly not trying to manipulate the future of gun control, but was making an attempt at preserving the militia. Militia power was not measured in the mechanics of fire power, but able bodied men were measured in their ability to possess a firearm and shoot it if need be. One was not expected to use his firearm in battle if he objected but had to provide service useful to the militia, an example being monetary support. Therefore the theory that every man had to own a firearm in order to serve his militia is not plausible. The designated, armed Militia was designed for serving the state and they were not a rag-tag group of farmers with hunting rifles in hand. Most likely the founding fathers supported universal firearm ownership for hunting purposes for the lay man, but as a military option for the able-bodied if war broke out.
As a result of the convention, this simple paragraph, explicit in terms, having more than one meaning to the founding fathers, became the Second Amendment of the United States Constitution. Today it is one of the most ambiguous paragraphs in American discourse. This is an ambiguity that was never meant to be; it is an ambiguity that Americans have brought upon themselves.
After the drafting of the Second Amendment, issues pertaining to it were left on the back burner while nation building became the main priority of the Founding Fathers. However, after some time, it became evident that the Supreme Court would have to hear arguments pertaining to the Second Amendment. For the most part, the Second Amendment still remains as one of the least argued issues in front of the Supreme Court.
HIGH COURT MANIPULATION OF THE SECOND AMENDMENT
Cases that were heard in the early days of the Supreme Court made it abundantly clear that the Second Amendment was not supposed to be incorporated through the Due Process Clause of the Fourteenth Amendment. In 1876, United States v. Cruikshank was heard by the Supreme Court. They reached a decision that the Second Amendment was only a restraint of Congress and that states were free to bear arms in keeping up with their police powers. In Presser v. Illinois, an unlicensed militiaman was on trial for marching armed through the streets of Chicago. The court stated that the states were free to regulate the right to keep and bear arms. Eight years later the court reached the same conclusion in Miller v. Texas. Although the court’s opinion has changed since the days of Miller v. Texas and United States v. Cruikshank, both cases are examples of how the Second Amendment has been altered throughout American history.
These decisions may seem dubious in comparison to current constitutional discourse. Current constitutional scholars use the modern incorporation test, which asks if the right is, ” fundamental to the American Scheme of Justice,” or necessary to an Anglo-American regime of ordered liberty.” The test looks at the purpose behind the right, the historical acceptance of the right, and any trends related to the state recognition of the right.” These cases provide a textual evolution, advocating a different type of Second Amendment theory than what James Madison encouraged in his drafting of the Second Amendment, which is that Americans may not have an absolute right to gun ownership. The Supreme Court slightly changed the Second Amendment by saying,
“The provision in the Second Amendment to the Constitution, that “the right of the people to keep and bear arms shall not be infringed,” is a limitation only on the power of Congress and the national government, and not of the States. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.”
Therefore, even if the incorporation doctrine was not yet used in the application of the Second Amendment to the states, in essence, the Supreme Court did in fact unknowingly apply it by saying that the states could not infringe on the people’s right to own firearms. In doing so they switched the legality of the Second Amendment from a collective right to an individual right. This mis-interpretation allowed the people to own firearms in accordance with their possible duty as “members of the militia.” This individual allowance opened the flood gates for future cases, which by using the incorporation doctrine would allow out-right ownership of firearms by all eligible Americans. Almost sixty years later, In the United States v. Miller, the court questioned the validity of an individual’s right to own certain firearms, clearly an indication that their decision to let individuals own firearms had already been fixed. This was a clear signal that the founders of the Constitution were clearly losing their posthumous battle over the Second Amendment’s original meaning.
As the Twentieth Century rolled along, only one case would question the validity of modern firearm laws. The Supreme Court handed down the only decision made in the 20th century involving the Second Amendment in United States v. Miller, which was heard in 1939. In Miller the Court upheld a Federal law which banned the transport of unregistered short-barreled weapons. The Court wrote the following: Without 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Clearly, the court intervened in what it thought could possibly open the doors of unrestricted and unregulated gun ownership. Many feel that Miller does not do any justice for gun control advocates. Regardless of what Miller may have meant in 1939, today it stands merely for the proposition that the right to keep and bear arms under the Second Amendment extends “only to certain types of weapons.” However, the truth is that they did not question the individual right to own any type of firearm, just a select few, which they deemed reasonable in terms of preserving a citizen’s militia. The only problem with the Supreme Court’s argument is the fact that the defendant in this case was not part of any militia in the first place; therefore, according to the original meaning of the Second Amendment, he should not have been carrying any type of weapon to begin with. The slope towards gun de-regulation got even more slippery eighty years later in The District of Columbia v. Heller.
In 2009 the Supreme Court heard oral arguments for the District of Columbia v. Heller. The Heller decision was a clear distortion of the Second Amendment, and furthermore it misconstrued one hundred and fifty years of constitutional common law. In Heller, the Respondent, a retired police officer, attempted to register a handgun. However; the district refused to grant him the license. He filed suit seeking to prevent the city from enforcing its law, which forbade the carrying of unlicensed firearms in the home, and furthermore required all firearms to have trigger locks, effectively making them less practical in an emergency situation. “The District Court dismissed the suit and the D. C. Circuit reversed. The Court’s holding said that the Second Amendment protects an individual’s right to possess firearms. The Court also said that banning handguns and requiring other firearms to be kept nonfunctional violated a person’s Second Amendment right.
Scalia’s majority opinion in Heller centered on the argument that the prefatory clause and operative clause of the Second Amendment should be considered as one unit, in other words, a consolidation of two principles based upon original intent. In my opinion this is circular logic and makes absolutely no sense, even from an originalist’s standpoint. It is erroneous because Scalia did not reach this conclusion using originalist logic. He did just the opposite. “This is divided into two parts: pre-Civil War and then post-Civil War. And so, he relied on much nineteenth-century commentary to show what the original meaning of the Second Amendment was in 1791. Justice Stevens said that Scalia’s opinion was, “Kind of interesting for an originalist.” ” Rather than construe the second clause in light of the preamble, as the Founding generation would have, Justice Scalia adopted a Nineteenth-Century interpretive approach. He interpreted the latter part of the Second Amendment first, effectively rewriting the Amendment and undoing the work of the First Congress, which had consciously rewritten the text to place the right to bear arms after the militia clause. This upends the claim that the opinion’s application of originalism is a neutral interpretive method.” Originalism seeks to use an antiquated interpretation in connection with the values of a modern society. In the case of Scalia’s majority opinion, if one is to use an originalist philosophy in connection with one’s opinion, it should at least be done correctly. Clearly Scalia had a conservative agenda and manipulated originalism to develop his argument. Originalism is based upon the philosophies and thinking of the founders during their lives. Clearly, in this case anyway, Scalia is not an originalist, but a hypocrite with a plan that undermined the very meaning of the Second Amendment.
Soon after the Heller decision, another lawsuit was filed, this time addressing the Privileges and Immunities of Americans and the Fourteenth Amendment. InMcDonald, the Court exacerbated the interpretive and historical mistakes that it made in Heller. In McDonald, the decision in Heller was applied to the states, making it a constitutional right for every American to own a firearm. Scalia’s vague attention to details and pseudo-originalist thought process is evident in his decision in the McDonald case as well. “In a 5-4 ruling, Scalia said the Second Amendment protects the individual unconnected with militia service to use firearms for such purposes as self-defense in the home.Yet Scalia wrote that the Second Amendment is not unlimited: “Nothing in our opinion should be taken to cast doubt on the long-standing 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.” Clearly there is confusion as to what Scalia means and whether his decision should even be treated as law since there are so many holes in it. There is still confusion as to where a person may lawfully carry a firearm.
Justice Scalia has insisted in the past that, “when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread and unchallenged use that date backs to the beginning of the Republic, we have no proper basis for striking it down.” Scalia also expressed how, “traditions are themselves the stuff out of which the Court’s principles are to be formed. They are… the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out” Clearly Scalia had an agenda, which was a clear contradiction of his own ideals. It is bad enough that Scalia has unwittingly poked holes into his own originalist argument, but the fact that his hypocrisy extends to stare decisis, dating back to Miller, not only sends a message that Scalia’s overall interpretation of the Second Amendment is unsettling, but it also proves that he is a bit insecure in his own understanding of the Second Amendment. He clearly does not have a method for interpreting Constitutional Law. “While these errors may have been inadvertent, they are related to other fallacious statements in Justice Scalia’s opinion that are clearly deliberate and highly significant. Most important, Justice Scalia attempts to show that Miller leaves standard military weapons outside the protection of the Second Amendment, but leaves weapons having little or no military utility within the protection of the Second Amendment. This turns Miller’s holding up-side down, namely that a short-barreled shotgun would be eligible for Second Amendment protection if it were shown that it is “part of the ordinary military equipment or that its use could contribute to the common defense.”
Justice Scalia said if Miller’s wording, which clearly states that weapons which are “part of ordinary military equipment,” would be “startling” if it was in deed meant to protect weapons of war. He goes on by saying that it would violate the National Firearms Act’s restrictions on machine guns since machine guns were used in battle in 1939, the year Miller was decided. The only problem with Scalia’s understand of Miller, is that Miller was not disputing the National Firearm Act. Scalia continues down an illogical slope by saying that, “we think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “Ordinarily when called for militia service able-bodied men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Scalia continues on in his opinion by claiming that, “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” He forms his originalist opinion by using pseudo-stare decisis from 1939 and relating it back to 200 years ago when the militia was clearly not being armed with machine guns. Simply put, machine guns are common in every military setting, furthermore; the proliferation of machine guns in the military has been exponential since 1939. “Justice Scalia attempts to derive such an implication from a statement of historical fact that appears later in the Miller opinion and in a different context. Commenting on the meaning of the term “militia” at the time the Bill of Rights was adopted, Miller says: “Ordinarily when called for service these men [i.e., members of the militia] were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” This is perfectly consistent with Miller’s plain insistence that the Second Amendment covers only weapons with military utility. It would not make much sense to expect men to appear for military service armed with weapons that have no military utility or that are not in common military use at the time. Scalia obviously sees himself as an originalist who is an advocate for upholding stare decisis with matters pertaining to the Second Amendment. The only flaw in this is the fact that it is impossible to have the best of both worlds. It is impossible for contemporary Americans to use military grade firearms that are suitable for their common defense while also baring characteristics associated with colonial weaponry. Scalia also knows that civilians can’t be armed to the teeth with .50 Calibre machine guns, so in the end his argument falls flat on its face.
IS IT APPROPRIATE TO USE ORIGINALISM
It is clear the the founding fathers intention in writing the Second Amendment was to provide colonists with some type of protection that the colonial government could not provide, considering the massive size of colonial America, not to mention the many enemies colonists faced. Settlers had to contend with hostile natives, the red coats, and although it may seem cynical to those who promote pro-firearm regulation, they also had to deal with their own government at the time, much to the chagrin of the Founding Fathers. The Whiskey Rebellion provides proof as to why the Founding Fathers were most likely not too fond of promoting rebellion amongst the colonials at any sign of a supposed government injustice.
During George Washington’s presidency, Alexander Hamilton, Washington’s Secretary of Treasury, suggested to Washington that a National Bank be created. Washington agreed with Hamilton and taxes were raised as a result in order to fun such a massive project. “Angered by the government’s policy, distillers harassed excise collectors. The use of violence and intimidation to oppose the tax did not, however, coalesce into systematic opposition at first. Anger over the tax simmered for three years before organized resistance erupted. In the summer of 1794, a group of angry protestors marched to the home of tax collector General John Neville. When the assembled crowd refused to disperse, Neville fired on the crowd, injuring several and killing one of the protestors. About a month later, angry citizens assembled in arms at Braddock’s Field near Pittsburgh, declaring their willingness to oppose the government policy by force of arms. What had begun as a tax protest had escalated into an armed rebellion.” The Whiskey Rebellion was one of the first national crises that Washington faced as president besides, obviously, the American Revolution. His reaction to the insurrection is interesting because it is an example of how the Founding Fathers were at odds with each other over how to handle armed rebellion.
Washington decided that it was in the best interests of the nation to put down the rebellion with military force. Alexander Hamilton backed Washington’s plan because he felt that the constitution made armed rebellion unnecessary, or in Hamilton’s words, “obsolete.” Ironically, the rioters who were put on trial agreed with Hamilton’s notion and never claimed that they had a constitutional right to bear arms or that they had a right to revolution. In my opinion this is due to the fact that the Second Amendment was not viewed in the same way it is today; as an amendment granting Americans an individual right to bear arms. The supposed lack of an original individual right to bear arms seems like a viable reason for the defendant rioters not to have invoked their Second Amendment right bear arms, however; 100 percent concrete evidence does not exist. Maybe they were too scared to use the individual, Second Amendment right to bear arms because they knew they would be hanged if their defense failed. In the end Washington Pardoned them because he did not want them to be martyrs, however; this specific instance in American History proves that historical records are not concrete enough to fairly decide exactly what originalism is or how an originalists understanding of the constitution may fantasize about what the belief of the founding fathers encompassed.
Originalism is based upon an illusory ideology which will never be possible to formulate into a viable means of constitutional interpretation. The constitution was written with flexibility as to allow a bit of leeway in it’s interpretation for later generations. The constitution may be considered a successful document due to it’s non-rigid structure and furthermore, it’s ability to change slightly with the times while upholding it’s core principles. If constitutional scholars did have absolute proof as to the original intent of the founding fathers, there would be no need for a judicial body or any type of Supreme Court interpretation; constitutional interpretation would thus be mechanical and not open for discussion. Further discussion of why originalism is an absurd method of constitutional interpretation must revolve around the idea of the differing intentions of the framers. Originalism is clearly dishonest. If historians do not know the true intent of the framers, who were much different in comparison to today’s social elite, how can they know for sure what the framers really wanted to gain by adopting the Second Amendment. For instance, some of the framers believed in slavery, while others thought it was an abomination, yet there is not mention of slavery in the constitution. The issue of slavery loomed heavily over the framers. A slave insurrection would have crippled the Southern Plantation economy. The issue of slavery and the Second Amendment should be a direct assault on originalism. It is certainly possible from an originalist’s perspective that the Second Amendment was created in order to subjugate slaves. “The Second Amendment was not enacted to provide a check on government tyranny; rather, it was written to assure the southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South’s principal instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions.” This seems like a viable explanation for why the word “slavery” was was never mentioned in the constitution, furthermore; it is also an example of why originalism does not work. If slavery was the sole intention of the founding fathers creation of the Second Amendment, than shouldn’t the Second Amendment be out-right amended? After all, slavery was abolished 150 years ago.
When President Obama appointed Sonya Sotomayor to the Supreme Court many right-wing members of Congress accused her of previously being involved in judicial activism. This is ironic considering that the Supreme Court’s main judicial activist, Antonin Scalia, had already been on the Court for almost 18 years before Sotomayor’s appointment. Scalia may be considered the epitome of a judicial activist, yet his originalist interpretation of the constitution falsely seeks to weed out judicial activism. “Originalism has gained increased prominence in recent years in large part because its proponents contend that it constrains judicial activism and provides at least some answer to the so-called “countermajoritarian” difficulty. As ought to be clear from the preceding discussion, however, it provides no such constraints at all. The “original intent” we create can lead to nearly any results if one is willing to manipulate the level of generality to which one ascribes to the founder’s intent.”
THE CURRENT POLITICAL CLIMATE AND IT’S UNPRECEDENTED EFFECT ON VIOLENCE.
Charleton Heston, the previous president of the NRA, once said, “The Second Amendment guarantees us the absolute ability to defend ourselves from anyone who would take away our liberties or our lives, whether it be King George’s Redcoats or today’s criminal predators. It alone offers the capacity to live without fear. it is the one natural right that allows “rights” to exist at all.” In theory Mr. Heston’s quote seeks to allow Americans to point their weapons at anyone who may cause them harm. Does this quote mean it’s OK for any libertarian to attack their local IRS office because they view taxation as a form of harm? It is tough to fathom that the founding fathers desired that guns would eventually be proliferated to the extent that government officials would face attack by angry tax payers, which is exactly what happened during the Whiskey Rebellion.
In America, the term “red coat” is synonymous with “the enemy.” During the founding of America it was easy to spot a “red coat” because they stood in stark contrast to their surroundings and were easy prey. However, in Charleton Heston’s quote he uses Redcoats and contemporary criminal predators in the same context, almost as if his “individual right” perspective has leaped 200 years into a society where criminals can’t be easily spotted and are not hiding in the forest, but in the inner-city. Frankly, we are not dealing with any type of military occupation. Furthermore, America’s modern day police forces possess the capability of ensuring some degree of safety on America’s streets. What police in America are generally dealing with today is Americans waging war on Americans, a peculiar scenario for the Western world. Originalism defiantly seeks to take the power away from the police and put it into the hands of the civilian population.
THE SUPREME COURT AND THE POLITICAL CLIMATE
It is no secret that conservative Americans are much more likely to support firearm de-regulation than their liberal counterparts. Ironically Justice Scalia, the staunch conservative who was responsible for the Heller decision, was appointed by Ronald Reagan. Ronald Reagan is known first and fore-most as the conservative president who fought and defeated communism, however; he is also widely known as being the president who aggressively waged a “war on Drugs” which President Obama recently ended due to it’s utter failure in preventing drugs pouring onto America’s streets.
The point I am trying to make by mentioning Ronald Reagan and his failed, “War on Drugs” policy, is that for such an avid crime fighter and anti-drug president, his legacy has caused just the opposite to occur. The very Supreme Court Justice that he had appointed to uphold American values, has undermined those very same American values by reaching his decision in Heller. This slippery slope down the road of originalism definitely reached it’s peak after the Heller decision, however; it was long in the making. Since the Reagan Presidency, conservatives have been tipping the political balance in favor of gun proliferation with powerful groups such as the NRA and sadly enough the Supreme Court. Judging by a statement made by Charleton Heston in 1997, fear is clearly a contributing factor in causing firearm proliferation. “Mainstream America is depending on you – counting on you – to draw your sword and fight for them. These people have precious little time or resources to battle misguided Cinderella attitudes, the fringe propaganda of the homosexual coalition, the feminists who preach that it’s a divine duty for women to hate men, blacks who raise a militant fist with one hand while they seek preference with the other, and all the New-Age apologists for juvenile crime, who see roving gangs as a means of adolescent merchandising, violence as a form of entertainment for impressionable minds, and gun bans as a means to lord-knows-what. We’ve reached that point in time when our national social policy originates on Oprah. I say it’s time to pull the plug.” Clearly the hatred that was festering in the mind of Charelton Heston has spilled over into the minds of many conservatives, and thus into the lives of average Americans. Their Supreme Court justices, most notably in Heller, swayed with the conservative mainstream that is thankfully less vibrant in comparison to the days when the Heller opinion was being published. In reality the conservatives have shot themselves in the foot. Gang violence continues to drop, however; the proliferation of firearms has led to other social problems such as suicide and accidental death, which are issues that other members of the industrialized world do not have to contend with on a daily basis.
SOCIAL PROBLEMS ASSOCIATED WITH FIREARM OWNERSHIP
“One of the great crises now facing our country is the growing rate of criminal violence. Handguns play a central role in this ominous picture. Of the 140 to 200 million firearms in this country, forty-five to fifty-five million are handguns — double the number in existence in 1968. Handguns are used in three-fourths of all armed crimes and cause 22,000 deaths annually. Firearms are used in approximately 33% of all armed robberies and in robberies involving firearms, handguns are “almost invariably the weapon used.” In the colonial era, handguns were a rare commodity, however; modern manufacturing processes and inexpensive gun models have decreased their cost and increased their deadly efficiency. The founding fathers would be turning over in their graves at just the thought of individuals being able to own firearms, however; the premise that they would be able to own sub-machine guns and other modern weapons would simply be astonishing considering the Second Amendment’s version of the firearm was a musket.
Guns have undergone a significant makeover since the creation of the Second Amendment. During the colonial era, it was often difficult for militias to even find muskets and ammunition. “The literature of the Revolutionary period makes it clear that guns were in great demand in all states with settled and unsettled frontiers. In Maryland, Captain Woolford, writing while encamped on the Nanticoke River, on May 3, 1775 said, “I must beg leave to inform you that our militia are badly fitted with arms, I am clearly of opinion, that not one half of them have effective guns, neither have we a sufficient quantity of powder and lead.” Clearly, if the militia was unable to obtain proper weapons, the average lay person was probably hard pressed in finding them too. It is evident that the proliferation of firearms amongst private citizens has increased substantially since the colonial era.
Under Federal law and the law of most states, a person is allowed to sell their firearm to another individual without any sort of background check. The Brady Act only applies to licensed gun dealers. Furthermore, a person who sells a handgun to an individual with a felony conviction does not have any incentive to make sure that the person is a lawful gun buyer. There is clearly no accountability in the process. If the convicted felon is caught it becomes the felons problem, not the person who sold him the weapon. A good analogy would be arresting drug users but not the drug dealers. Most states do not even have registration systems which track gun owners and those who sell firearms. Clearly, the systems that have been put in place are far less than adequate. They are down-right inefficient. The recent Virginia Tech massacre may in-part be attributed to the this inefficiency. “The more important, but usually ignored, truth is that it is easy for mentally deranged people contemplating mass murder to get handguns.”
As tragic as school shootings are, they pale in comparison to the toll wrought by firearm suicides, which continue hour by hour around the clock, day in and day out, virtually unnoticed and ignored. The number of articles appearing in the NEXIS database concerning the six school shooting incidents is twice the number of articles concerning the entire topic of firearms and suicide in all contexts.” In all there have been six school shootings which have gained significant media attention. Out of these six shootings, twenty-seven people died. This is not a small number of innocent lives being lost, however; it is small in comparison to firearm related suicides in America. Forty-six people commit suicide with firearms in the United States every twenty-four hours. Mentally deranged people are not limited to those who wish to commit bodily harm on others. Suicide plays another role associated with America’s lack-luster firearm laws.
“Firearms account for 60% of all suicides in this country, including youth suicides, even though they are used in only a small percentage of suicide attempts. The firearm suicide rate in the United States for children under the age of fifteen is eleven times higher than that of any industrialized nation in the world. The dramatic escalation in adolescent suicide rates is accounted for almost entirely by an increase in the use of firearms as the method of suicide attempt, with little rise in suicides by other means. Between 1980 and 1992, guns accounted for 81% of the increase in the suicide rate for persons between the ages of fifteen and nineteen.”
There is one primary reason why guns are so readily available to adolescents. There is a lack of legislation requiring accountability on the part of those who keep their firearms in a careless manner. A substantial body of public health evidence links the ready availability of firearms, especially in homes, to suicides generally and to adolescent suicides in particular. Even without the studies, common sense informs us that ready availability of the most lethal method of suicide to a population group marked by immaturity, impulsiveness, and shortsightedness is a dangerous mix. Adolescent firearm suicides are a natural and probable consequence of the coalescence of four factors: (1)firearms are successful in delivering a fatal shot 85 percent of the time, (2) 40 percent of American households own firearms, 90 percent of suicides occur in the home of an adolescent, and millions of people negligently store their firearms. Suicide is a violent end to a troubled life. However, it is also one of the most glanced over areas of gun-control legislation.
One opponent of the recent swing in firearm de-regulation is Laurence Tribe. Tribe’s belief may be seen as an echo from the past. To Tribe, the right is based off of narrow principles and intended for protective purposes only. “Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by the Fourteenth Amendment against state or local government action.”
The Incorporation Doctrine has mistakenly provided proponents of firearm de-regulation with an outlet for bestowing every eligible American with the right to own firearms.
“Opponents of gun control legislation continue, as they have for years, to invoke the Second Amendment as a bar to meaningful legislative action restricting the possession of or transactions in firearms. This invocation of the Second Amendment ignores the prefatory language which clearly ties the right to bear arms to the maintenance of state militias. There is no legal support for the proposition that the Second Amendment provides for some fundamental personal, absolute right to bear arms. Despite arguments to the contrary, the Second Amendment is simply not written in the same personal, individual rights terminology as are other provisions of the Bill of Rights, such as the First and Fifth Amendments.”
Furthermore, the incorporation doctrine was designed with the intention of binding the Bill of Rights to the states. It was not designed to change the meaning behind each amendment in the Bill of Rights. For instance, the Incorporation Doctrine never outwardly changed the entire meaning of the establishment clause, nor did it change every American’s ability to exercise their freedom of speech, or the ability for a man and a woman to get married. However, it did change the entire meaning of the second amendment after the Miller v. Texas decision. The Second Amendment has been manipulated to the point where is does not even exhibit the same distinct characteristic tone that it embodied when Madison drafted it two hundred and thirty years ago. The Second Amendment, the most simple and straightforward phrase in American discourse, has been wildly interpreted and augmented to include an entire class of people that it’s creators never intended to include. Furthermore, many Justices, most notably, Scalia, a self-purporting originalist, have switched bearings by applying the Second Amendment as if it were part of a “living breathing document,” in a total shift from originalism, by using nineteenth century principles under the guise of originalist philosophy. What has resulted is millions of people who believe that it is their constitutional right to own un-regulated firearms. Even the NRA has realized the pitfalls associated with their application of the Second Amendment. Unlike the uneducated cowboys, who brandish their weapons as if they are toys, the NRA is one of the strongest lobbying groups in the United States. Most Americans are familiar with only part of its language, the abridged version emblazoned on the edifice of the National Rifle Association’s Washington, D.C., headquarters: “The right of the people to keep and bear arms shall not be infringed.” The conspicuous omission of the first thirteen words of the amendment – the most important 13 contextually – speaks volumes.” The limitation of the Second Amendment written on the headquarters of the NRA is a testament to the erroneous interpretation of the Second Amendment that has become a part of the American, gun-toting, cowboy culture.
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