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Fri Dec 28, 2012, 02:36 PM

Amendment 2 Blues [View all]

While reading through numerous threads on General Discussion, I am reminded of an old saying of Mark Twain’s: “The problem today is not one of ignorance, but rather, is one of folks knowing so much that just ain’t so.” Surely, this fit’s the on-going discussions on Amendment 2 like a glove. And that glove becomes an even more snug fit, when the emotional content transforms cool conversations to the heated arguments found here.

Part of the problem, I believe, is that there isn’t enough focus on the Constitution, and its application to our culture, in public education. I do not blame either teachers or administrators for this. Public education should teach the rights and responsibilities of our nation, just as surely as reading and writing. That was, in fact, a significant part of its “original intent.” However, in the post- Civil War era, public schools became the training ground for obedient factory drones, and the need to raise one’s hand to secure permission to use the restroom became more important that understanding the Constitution. Today, as public education is being geared -- again, not by teachers -- to separate the potential high-tech employees from the “service” workers, that new stratification requires a greater ignorance of the Constitution, multiplied by emotion.

I do not claim to be a “Constitutional scholar” -- a label frequently misused here -- but I do have many years of informal study on the topic of the its history and application, along with a couple of years of studying the law in college. In other words, I am at about the level that I think is required for responsible citizenship -- no more, no less. And although I’ve seen no evidence of any Constitutional scholar inhabiting the forum, I do think it is beneficial for our community to discuss the many related issues here.

Let’s start with a basic description of some of the terms used in meaningful discussions of the Constitution. First, there is “original intent” (or original meaning) and “current understanding.” The original intent is, of course, what the Founding Fathers believed the Constitution, and especially the Bill of Rights, meant. Even a shallow knowledge of the workings of the Founding Fathers includes the recognition that they frequently disagreed. One area of disagreement was the often ill-defined gray area of the rights of individual states versus the power of the federal government. Indeed, if that were not so, we would still be governed by the Articles of Confederation.

How the Constitution applies to current events is defined by “Constitutional Law.” In other words, it is defined by the interpretations of the US Supreme Court. The federal court system deals primarily in appeals of lower court (re: state) decisions; it is not based upon “guilt” vs. “not guilty,” but on if there was a potential violation of Constitutional Rights. And, right or wrong, the lower federal courts are required to follow the precedent set by the Supreme Court.

The fact that the USSC at times renders split decisions indicates that, even today, there can be vigorous disagreement on issues of Constitutional Law. Likewise, there are many indications that the “current understanding” of the law evolves: hence, for example, the increased number of amendments since the Bill of Rights was confirmed. This is obviously one of the primary reasons that the public should have a greater understanding of, and appreciation for, the Constitution and Constitutional Law. The troubling lack of insight is threatening to allow the federal government’s non-judiciary branches to stack the courts with right-wing and corporate-minded injustices -- not limited, unfortunately, to conservative republicans -- who follow a path that shreds the very foundation of the Bill of Rights (the “Patriot Act” being the most obvious bi-partisan example).

Now, let’s look at just one example of the current lack of understanding of the Bill of Rights, currently raging on this forum. And I’ll start by saying that I am definitely in favor of stronger “gun control” laws, as are the majority of Americans. However, Amendment 2 has to be taken into account -- at least until such time that it is repealed, something that isn’t going to happen any time soon. Yet the second amendment does not, as a matter of Constitutional Law, provide for an unlimited right for individuals to own any and all weapons that strike their fancy.

But before we can have a meaningful discussion of that complicated issue, it is important to have a grasp of the original intent. Why is there an Amendment 2 ? What led to it? And did it address individuals, militias, or both? The answers to those questions is found rooted in the dynamics which, by no coincidence, led to what would become known as “the shot heard around the world.”

The British powers were concerned primarily by the guns held by the citizens of and around Boston, MA. Hence, “General Sir” Thomas Gage attempted to force these people to turn over their guns. The Continental Congress recognized how foolish this was, especially under the circumstances. And it had nothing to do with the hunting rights (or self-defense against Native Americans) that folks in the rural border areas had.

After the Revolutionary War, several individual states would include “gun rights” in their state constitutions. When the general concept came up a (relatively) short time later, in the context of Amendment 2, a central question was if these rights were exclusive to a militia, or did the right apply to individuals? As with so many issues, there was a wide range of opinions on what was needed. Those representing four states in particular -- Massachusetts, North Carolina, Pennsylvania, and Vermont -- would advocate strongly for the individual’s right. Indeed, one of the topics of conversation was that a state militia could, by definition, allow for the said state to deny individual rights. A proper reading of the history of Amendment 2, as well as of the Constitutional Law related to it, makes clear that it is -- at very least -- intended to protect individual rights, as well as group (militia) rights.

People on both sides of the on-going debate would do well to become more educated about the Constitution, especially the Bill of Rights, and of the detailed history of Constitutional Law. It strikes me as unlikely that any meaningful progress can or will be made by those who base their thinking about this important issue solely upon bias and ignorance. Yet the need to address the brutal realties of violence in America demands action, now.

Peace,
H2O Man

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H2O Man Dec 2012 OP
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