Wednesday, December 26, 2012

Worth the paper it's printed on

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

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- 4th Amendment
For the most ardent gun rights advocates out there, the language of the 2nd Amendment is sacrosanct. Of course the qualifying clause before the comma is often brushed off as if it didn't exist.

We look back now at the Constitution and Bill of Rights as the great blueprints of our nation. At the time the Constitution was adopted, however, there were a multitude of voices arguing that the plan laid out in that document would only serve to enslave farmers and other agrarian interests. That's why we have two house of Congress - one represented the voice of the people and other represented the voice of the states. It's the reason the Electoral College was created - to ensure that the voters of just a few of the larger states could dictate who served as president. (The irony, of course, is that we have just the opposite situation today where the voters of a few states hold the rest of the nation hostage on Election Day.)

The agrarian interests were not in favor of a strong centralized government. They believed that only favored the monied interests in the larger states. One thing they really feared was the creation of a federal army. The 2nd Amendment was designed to sway those critics by leaving the defense of the republic to the state militias.

And, in order to have state militias capable of defending the republic against an expected attack from the English, folks needed to have guns.

Now that we have a professional army, the original rationale for the 2nd Amendment no longer exists.

If one wants to argue that the words of the 2nd Amendment are absolute, I can only show you the words in the 4th Amendment as proof that nothing in the Bill of Rights is absolute.

The 4th Amendment, despite its clear prohibition against unreasonable search and seizure and the warrant requirement has been honored far more in the breach than in the observance over the history of the republic. Most of the "reinterpretation" of the 4th Amendment has been the result of judges seeing cases in which someone either did something bad or had something bad and, but for a warrantless search, would have gotten away. Supreme Court justices, instead of reading the 4th Amendment and applying its words, adopted a results-oriented approach and looked for ways to get around the warrant requirement.

Over the years the Court has redefined "persons, houses, papers and effects" and created a mythical "reasonable expectation of privacy" test out of whole cloth. Courts have redefined "searches" and "seizures" in such a way that a person can be handcuffed in the back of a police car and not be considered seized and a pat down for weapons isn't considered a search. The word "unreasonable" has apparently been deleted from the English language and probable cause has become so watered down that stops are justified because an officer thinks someone may have violated the law.

Once upon a time we had a right to be left alone by the state, today you can get tased if you don't stop to answer questions

Maybe it helps that gun holders and makers have a very powerful lobby behind them with lots of money to throw around while victims of warrantless searches tend to be convicted criminals without a lot of cash.


Herbert Stock said...

When the US Constitution was written, and for more than 80 years afterwards, 'arms' meant flintlocks, muzzle loading, single shot, inaccurate over 50 metres or more and taking up to 70 seconds to reload. Even from Australia these seem acceptable.
But did the founders mean weapons, killing devices like assult weapons, multishot, quick loading devices? I think not.
So why don't US courts recognise the real,'originalist' meaning of the amendment and protect the citizenry from mass murder?

Paul B. Kennedy said...

Thank you for your comment.

We could even go to the opposite extreme - if the purpose of the 2nd Amendment was to ensure that the citizen militia was equipped to fight a war then why shouldn't we be able to keep and bear rocket launchers, tanks and surface-to-air missiles?

We have a disease in this country and until we're ready to address it, the killings will continue.