Tue Dec 18, 2012, 08:30 AM
swag (24,900 posts)
So You Think You Know the Second Amendment (Jeffrey Toobin)
Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.
For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.
Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)
The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagan’s election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find “clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.
Read more: http://www.newyorker.com/online/blogs/comment/2012/12/jeffrey-toobin-second-amendment.html#ixzz2FPU2U4N3
6 replies, 2236 views
Always highlight: 10 newest replies | Replies posted after I mark a forum
Replies to this discussion thread
So You Think You Know the Second Amendment (Jeffrey Toobin) (Original post)
|Hell Hath No Fury||Dec 2012||#2|
Response to swag (Original post)
Tue Dec 18, 2012, 05:27 PM
struggle4progress (91,123 posts)
5. An intellectually honest constitutional originalist would need to grapple with the true context of
the second amendment, which is the Founders' hatred of standing armies. This is codified somewhat in the original document, at Article I, Section 8:
... The Congress shall have Power ... To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ...
The citizen militia, referenced in the second amendment, was the Founders' answer to the lack of a standing army: it was at once the answer to the threat of external invasion and the answer to the threat of a tyrannical usurper
Until WWII, the US had no significant standing army. However, the experience of the world wars, and the rise of the modern totalitarian states, as well as the national security doctrines associated with atomic weapons, were widely understood as forcing America to rethink traditions against permanent military readiness and to establishment a permanent armaments industry
If, therefore, we really want to talk about the second amendment, it may make sense, as a long-term project, to try to recall the Founders' concern about a standing army and the post-WWII development of a massively-armed America, as part of the puzzle
The Chance for Peace, Dwight D. Eisenhower, 1953
... Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. It is two fine, fully equipped hospitals. It is some fifty miles of concrete pavement. We pay for a single fighter plane with a half million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people. This is, I repeat, the best way of life to be found on the road the world has been taking. This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron ...
Military-Industrial Complex Speech, Dwight D. Eisenhower, 1961
... A huge increase in newer elements of our defense; development of unrealistic programs to cure every ill in agriculture; a dramatic expansion in basic and applied research -- these and many other possibilities, each possibly promising in itself, may be suggested as the only way to the road we wish to travel ... Good judgment seeks balance and progress; lack of it eventually finds imbalance and frustration ... Our military organization today bears little relation to that known by any of my predecessors in peacetime, or indeed by the fighting men of World War II or Korea ... But now we can no longer risk emergency improvisation of national defense; we have been compelled to create a permanent armaments industry of vast proportions ... This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications ...
Response to swag (Original post)
Thu Dec 20, 2012, 07:00 AM
davidpdx (22,000 posts)
6. As someone who studies law as a doctoral student and a personal interest
I really like Toobin. I own both of his books on the Supreme Court and they were informative. I highly recommend them.