Guns

In my last post "Guns, The Cliff, The Right, & The Left" I pointed out that the NRA is not what the media made them out to be.

As I said in that post:

Who in Hell is the NRA? They have been represented by the media as the representative of gun owners, of hunters, of sportsmen. Are they? According to their own website they have four million members. The adult population of the United States is 250 million adults over the age of 18.  

In response thereto one of my subscribers wrote:

…it seems to me the gun problem in this country has become insurmountable. You know the first thing that happened after the school shooting was a huge surge in gun purchases, because of the fear of gun restriction legislation. How do you deal with this type of mentality? How do you deal with all the illegal weapons out there? I'm very pessimistic about our ability as a nation to deal with this problem.  

I don’t share that pessimism because the facts, and in my view, we must always start with the facts, do not support this pessimism. The writer explains her pessimism by pointing out that: 

…the first thing that happened after the school shooting was a huge surge in gun purchases…

Yes, that is what the media reported, but the media, as usual, does not tell the whole story. CNN, in a report which didn’t get the coverage it deserved, reported that it is a matter of:

Fewer U.S. gun owners own more guns.

It wasn’t a surge of most people, or even a great many people, who bought guns. It was a small number of gun nuts buying more guns. That is not at all discouraging.

The article went on to say:

… the number of U.S. households with guns has declined, but current gun owners are gathering more guns.

…both the number of households owning guns and the number of people owning guns were decreasing.

…20% of the gun owners with the most firearms possessed about 65% of the nation's guns.

The number of households owning guns has declined from almost 50% in 1973 to just over 32% in 2010,

…The false perception that there are more gun owners has helped bolster a political narrative, emboldened the National Rifle Association and left politicians worried about losing support…

There is a myth pushed by the gun industry, the NRA and the trade associations for gun makers that gun ownership is up," he said. "[That] there are more gun owners, when the opposite is true, gun ownership is declining."

Thus, as I have always preached FACTS FIRST!!

According to Mayors Against Guns:

87 percent of NRA members agree that support for Second Amendment rights goes hand-in-hand with keeping guns out of the hands of criminals.

74 percent of NRA members and 87 percent of non-NRA gun owners support requiring criminal background checks of anyone purchasing a gun.

79 percent of NRA members and 80 percent of non-NRA gun owners support requiring gun retailers to perform background checks on all employees – a measure recently endorsed by the National Shooting Sports Foundation, the trade association for the firearms industry.

86 percent of Americans and 81 percent of gun owners support requiring all gun buyers to pass a background check, no matter where they buy a gun or who they buy it from.

And according to the Pew Research Center for People and the Press:

...about two-thirds (65%) think that allowing citizens to own assault weapons makes the country more dangerous. Just 21% say that permitting these types of weapons makes the country safer.

Whether to ban semi-automatic guns – 44% favor such a ban, while 49% are opposed.

Ok, more are opposed to banning assault weapons than are in favor. But that is by a small margin, which from the first statistic, that 65% think that allowing citizens to own assault weapons makes the country more dangerous, and that just 21% say that permitting these types of weapons makes the country safer, suggests that many, if not most, of these people may be persuadable.

At least as interesting are the statistics on views by demographics. Again according to Pew Research Center for People and the Press, Whites believe that allowing citizens to own assault weapons makes (the) country more dangerous, comes in at 26% to 61%, but among Blacks it is the reverse, at 83% to 10% and women it is 73% to 15%. Finally, while Hispanics have not been polled adequately the Daily Kos reported, 56% to 32% in favor of an assault weapons ban.

That is a lot of figures to ponder, but facts are very important.

If an assault weapons ban were to pass would it solve the problem? NO! Would a ban on large clips solve it? No! There are just too many guns out there! To really make a dent a repurchase program would be necessary. But to solve big problems we need to take one step at a time. It takes time, but start we must.

Allow me to just make some comments on the Second Amendment, which because of the political pressure (and money creates pressure, and the gun lobby has lots of money), has been grossly misrepresented. The amendment reads:

“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.”

Now let us ask ourselves, and original intent advocates, if consistent, ought to be the first to ask this question, why was this amendment put into the Bill of Rights. In fact why do we have Bill of Rights?

The answer should be obvious. The framers had just finished replacing the Articles of Confederation with the Constitution, which greatly increased the powers of the Federal government. State Rights advocates were worried that the Constitution gave too much power to the federal government. They were particularly worried that the new government might eventually abolish slavery. And so they wanted to make sure that states had access to militias, which might resist the powerful Federal government. But it was never intended to be a restriction on the States.

This is in fact what happened in 1860. Had the states not had militias there could not have been a Civil War. Thus to interpret this as applying to the states is absurd on its face.

So how did the Supreme Court find it applied to individuals and to the States? Well they did that in 2008 for the first time in American history by the usual five to four vote. Never before was this interpretation given.

And what did they base it on? Amendment XIV passed at the end of the Civil War to protect the newly freed slaves.

The amendment reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So an amendment intended to protect the newly freed slaves, ends up, in our topsy-turvy world, exposing them to the worst of gun violence.

Since the Civil War was fought to put an end to the idea of secession, and to armed revolt against the Federal government, it is ironic that Lincoln never thought of the importance of repealing the Second Amendment. But that is the irony of history.

Nevertheless, the Supreme Court did hold that reasonable regulations are not unconstitutional, either at the State or Federal level.

Comments, questions, or corrections, are welcome and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified.

Originalism - A Constitutional doctrine without validity

In my last three commentaries I have been demonstrating how the doctrines propounded by the Right for judicial interpretation are fallacious and downright dishonest. I strongly urge my readers to reread these articles

I would also urge readers to read my analysis on the meaning of a Right wing Supreme Court which I published in October of 2005 under the title, “The Supreme Court - Consequences As New Appointees Shift Its Balance and the short add-on entitled, “The Debate About Supreme Court Nominees”

In these articles I demonstrated that the term activist judges more appropriately applies to the Right Wing of the court which strike down acts of elected legislatures with far greater frequency than the liberal judges and that “calling balls and strikes” is a misnomer which has no place in a realistic understanding of how the Constitution and the laws passes by Congress are interpreted.

Another favorite catch phrase used by the Right is that of “Originalism” by which the Right of the Court and in the Congress claim that they strive to interpret the Constitution by the original intent of the founders. I may be wrong but I believe that the term had its origin with Robert Bork, that highly controversial Reagan nominee to the Court who was denied confirmation by the Senate as being far, far too Right. Yet Bork himself admits that it is a doctrine that in the real world cannot be applied. In a book that he co-authored he writes in its Introduction:

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."

So much for the claim that liberals on the court are activists and that Right-wingers are originalists. It is a phony paradigm. As I have stated before, judges are human and what they read into the vague text of laws or the Constitution, whether Left or Right, is informed by their backgrounds and their political philosophy. To argue otherwise is either insincere or naïve.

As for the loud cries against using references to foreign law in interpreting the Constitution that too is a misplaced argument. First it is not only the liberal Justices who make such references. Justices Kennedy and O’Connor both appointed by Reagan have supported this.

Secondly when we look to the Declaration of Independence we find the phrase, “a decent respect to the opinions of mankind” and the Constitution’s Bill of Rights in amendment VII refers to the “common law” which every lawyer knows is a reference to the decisions of British courts preceding the founding of the U.S.

It is again a tempest in a teapot without reason.

Just how little respect for due process the present five Justices of the Right have can be seen in their recent decision in DISTRICT ATTORNEY’S OFFICE FOR THE THIRD JUDICIAL DISTRICT ET AL. v. OSBORNE which held that a state is not obligated to allow DNA testing where it would conclusively show whether a man convicted of rape was, in fact guilty. See the Washington Post’s story on it here.

In that case the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83.

Finally, I strongly urge those who have an interest in these issues to listen to Senator Whitehouse of Rhode Island on Sotmayor nomination, which can be listened to in full here. The speech is 21 minutes long but I think that the investment of your time will be more than rewarded, though the first minute or two will not hold the reader spellbound.

The issues involved in these court decisions in many ways outweigh those pending in the Congress, and I urge you to take the time to read and listen, if you desire an understanding of the forces at work.