Friday, May 25, 2018

A false idol?

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.  -- 2nd Amendment

In the wake of the latest school shooting, I must ask, once again, why is the 2nd Amendment considered so sacrosanct?

The 1st Amendment states that "Congress shall make no law... abridging the freedom of speech." Subsequent constitutional jurisprudence extended this prohibition to the states under the 14th Amendment.

Yet we have plenty of laws that restrict the right to free speech. If you threaten to cause bodily harm to another you have committed a criminal act. If you spread a falsehood about another person you have committed a tort. During World War I you could be arrested if you dared to speak out against the war effort.

The 4th Amendment is supposed to protect us from unreasonable search and seizure. That language was interpreted by the courts to mean the police had to have a warrant to search you, your belongings or your property. As I've said many times before, the 4th Amendment has had so many exceptions cut out of it that it resembles a piece of swiss cheese. In almost every one of those decisions, the Supreme Court created an exception so they wouldn't have to overturn a conviction.

The 5th Amendment says you cannot be compelled to be a witness against yourself. In the context of a DWI case, your refusal to consent to field sobriety exercises or to a breath test can be used as evidence of your guilt at trial. Courts have also done their part in narrowly defining what could be considered testimony, saying an arrest isn't an arrest when it suits the police or prosecution and what the magic words are that a suspect has to utter to preserve his right to remain silent.

For most of our history, the 2nd Amendment was viewed in the context of its first clause, the so-called "militia clause." It wasn't until the late 1970's that the NRA (which supported strengthening gun control measures after the Black Panthers started carrying guns), began touting the 2nd Amendment as an individual right. In fact, the first case that struck down a gun control measure was the Heller case in 2008.

Is the abridged version of the 2nd Amendment held up for adulation more than any of the other amendments because it's not protecting a right of the citizen accused? Does that someone make it more worthy than the others?

The notion that one amendment is sacrosanct while the others are all malleable flies in the face of this country's jurisprudence. It even flies in the face of laws currently on the books. It's against the law for a convicted felon to own a firearm. It's against the law for a person convicted of domestic violence to possess a firearm.

Now I'm not going to sit here and say that stricter gun control measures could have prevented any of the recent school shootings. I also agree with the sentiment that making something illegal doesn't make it go away. But we don't repeal murder laws because folks keep killing each other. I do believe that we need to figure out what it is at the core of our national psyche that makes us the killing machines that we are. We are, at our core, a sick group of people and until we find a cure for the illness, the shootings will continue.

But we need to get past this (recent) notion that the 2nd Amendment is somehow more important than the others. Until then the shootings will continue.

1 comment:

Lee said...

Imagine for a moment that as if by magic all the civilian & criminally owned firearms disappeared off of the North American continent. It is a farce to believe that without the firearm in our society, that these mass killings would stop as well. People intent on murder would just have the inconvenience of having to select a different weapon of combat. Remembering that one is more likely to die from being stabbed as opposed to a gunshot wound (from loss of blood & infection) the only bar that remains for persons intent on murder to carry out these acts is their imagination. Granted without these automatic weapons the amount of casualties would not be as high, these mass killings would still be attempted with different means. Think about the states in their scramble for drugs used in executions, when one is unavailable they simply switch to another drug or try to legislate a different method. The killing & destruction still happens (although the results may vary until they reach what they call success). Drug abuse works the same way as in the absence of cocaine, users found other ways including glue, bath salts & abuse of other household items to achieve that end. I do not know which tool in the absence of firearms that potential mass murders will try including a broadsword, explosives, or go old school by using a bow & arrow that can easily go through a metal detector. They could even go more historical than that & shank their classmates with a sharp stick they got off of the abundance of trees or use a easily obtained pencil from a classroom. Consider that in prison the lack of firearms present does not stop inmates violence upon one another. In the absence of firearms people intent on killing will just have to find another tool for their trade even if it is just a sharp stick (as I wonder how the state is going to ban trees, sticks, & all sharp edged items in attempt to curtail violence). In the absence of firearms from our societies, the casualties of these mass killings might be less but they will still happen. We need to direct our search for a solution not to the elimination of the tool but rather to the person using the tool. Even if their primary most effective, efficient & convenient tool is not available, they only have to find another one.