2/23/2018

A CALL TO ARMS: THIS TIME THE WEAPON OF THE VOTE AND THE PEN

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The counter to the murderous outrages, the shootings, that have overwhelmed us all is not more firearms. What is needed is stronger weapons of the vote and the pen.  Emma Gonzalez and the others who spoke out at the demonstration rally in Fort Lauderdale after the killing rampage there have it right.   

What is needed is new laws, and those enforced. And should the current batch of lawmakers not provide them, or the current policing forces not protect us, then we need to exercise the vote and throw the current batch out and get people in who can make and enforce laws limiting gun availability and use.



I’ve been thinking about what sorts of laws might be useful, laws that both limit arms sales and use and still uphold the core values represented in the second amendment. I am hopeful that such laws can be written, adopted and enforced.

If it is determined that there is no way to limit sales and or use of arms within the purview of the current read of the second amendment, then I believe we need to augment the meaning of the amendment by further amendment. That approach of course is more difficult, since it involves an amendment to the constitution. We will look at that possibility later in this essay.



So lets begin with some laws that do make sense under at least some reading of the Second Amendment.



The Second Amendment to the Constitution 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.” (The two comas are not part of the article as ratified by the States.)



The notion of a “well regulated Militia” and its value to the security of a free State, together constitute a prefatory clause to the statement, “the right of the people to keep and bear Arms shall not be infringed. The right of the people to keep and bear Arms is related to the matter of having a well regulated Militia and a secure state. Whether it is exclusively so has been a matter of debate, but the wording of the amendment certainly suggests that a primary reason for this right is the matter of security and a regularized militia.



Nothing in this wording suggests that the right to bear arms supports insurrection, rebellion or revolution. Indeed it would be very odd if the constitution included in it the right to bear arms specifically as a protection against unwelcomed governance under the constitution. State and local militias in the South did indeed bear arms against the Federal government, and doing so constituted rebellion, not exercise of guaranteed rights.  The right to revolution and rebellion lies not in the constitution but in the success of the revolution itself. If the revolution prevails, the right prevails.Otherwise the so-called patriots are simply traitors.



So the romantic notion that “the State” in this instance does not mean the government under the Federal constitution, and that the right to bear arms is a guarantee of independence from federal government, is just that – romantic.



The amendment is then about a well regulated militia in support of the security of the State. “The people” whose right it is to bear arms, can most easily be understood as meaning “citizens” organized in some fashion as militias.  In our long history of such organization, a sheriff’s posse, local police forces,  a state militia or national guard all have been examples of a “well regulated militia.”  When local policing powers were not sufficient for protection, local militia groups had the right to exist and take on such authority as necessary. And, by extension, individuals could provide for their own protection in situations where they felt adequate protection from larger organized militia was lacking or not immediately present.



A beginning point for limiting arms use might be, then, to specify that certain arms are limited in production, license and use, to “well regulated militia,” and that individuals, unless they could show cause why their recourse to such militia for protection was inhibited or inadequate,  could not posses or use such weapons. 



Several sample laws:



Regarding use of assault weapons or automatic weapons.



(A)   No person, except those members of a well regulated militia recognized by state or federal law, may purchase, own or use classes of weapons determined to be designed for assault, or that fire multiple projectiles automatically.. Or



(B)   Persons who are members of a well regulated militia recognized by state or federal law may be trained to use the classes of weapons designated as assault weapons or weapons that fire multiple projectiles automatically, and may use them in the line of duty related to their service in such militias. Such weapons must be registered by the militia to which the person belongs and may be assigned to specific persons for their use. No other sale, purchase or use of such weapons shall be permitted.



Regarding all other firearms:



(A)   Individual citizens, provided such individuals are registered as members of an organized and well regulated militias recognized by state or federal law, and have been trained in the use of such weapons, may own and retain firearms not part of a militia armory and not excluded as assault or automatic weapons. The use of such weapons for individual and household protection is to be understood as an extension of powers granted to militia in defense of the “security of a free state.” 



Individual citizens not registered as members of an organized and well regulated militia may be licensed to use such weapons for sport or hunting, provided they receive training from a recognized militia on the safe and proper use of such weapons. Such license does not include the use of these weapons “in defense of the security of a free state,” except under extraordinary circumstances.



In every case these proposals emphasize the point that use of or ownership of firearms is an extension of the need to provide for a militia to defend the security of a free state.  A “militia” would include everything from the Federal Armed Forces, the National Guards of the several states, police and other law enforcement groups, recognized local security organizations (including security services and neighborhood watch groups) and any other organization the state deems able to provide both training and supervision of the use of assault and automatic weapons.



Under such laws no individual could legally own assault or automatic weapons and no individual not a part of an organized militia could be licensed to use such weapons. All other firearms could be owned and used by individuals provided they received training in their use from a “well regulated militia” and were licensed. It would be up to the states to set other limits on who may own or use allowed firearms.



What happens if some such laws are not enacted?  Could the Constitution be amended to make unambiguous the understanding of the limits of arms bearing considered to be the people’s right?  I think it could, but that would be even more difficult than enacting specific laws to cover allowed weapons use.



Here is an example of such an amendment:



On the right to bear arms:



The right of the people to bear arms shall not be infringed, provided that bearing such arms is in defense of the security of a free state. The State, and the several states, in order to provide for the security of its people,  may limit ownership, bearing and use of such arms to members of recognized militia or, in the case of arms for personal defense or use of firearms for sport or recreation, the state may license individuals duly trained for those purposes. The use of assault and automatic weapons is by this amendment reserved for active duty militia members in training for, or in, combat or police action.


Rapid fire weapons in the hands of individuals with personal agendas for action are a real and present danger to the security of a free State and to individuals deserving of the protection of that State. Not to limit the sale and use of such weapons is counter to the vision of a society that promotes life, liberty and the pursuit of happiness.







   












1 comment:

  1. Your essay makes clear the intention of the Second Amendment and it's logical use. I fear, however, action is unlikely without a Constitutional amendment. District of Columbia v. Heller (2008) is the Supreme Court's ruling breaking with 200 years of precedence to separated the two clauses. As I understand it (not being a lawyer)this makes the right to bare arms an individual personal matter, a right which the government may not take away. Given the current court, Congress my even have a difficult time making laws to limit that right. I hope I'm wrong. I suspect Citizens United and Heller will eventually come to be recognized as terrible mistakes. Tom Downs

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