Wednesday, August 1, 2012

The Right of The People To Not Be Shot: An Examination of The 2nd Amendment.

"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."

Many people will look at this amendment and see that it clearly states that the right of the people to keep and bear arms shall not be infringed. Others will look at this same amendment and see that well regulated militia’s have the right to keep and bear arms. No matter what side of the debate you are on, I’m going to take a serious look at both arguments and examine why the question should not be “Why are they trying to take our guns away?” and instead be, “Why do you have the right to possibly shoot me?”

Now if you believe rhetoric like the kind from the mouths of NRA members, they will argue that the right of the people to keep and bear arms is absolute. That means that under no circumstances can this right ever be abridged. They will also state with absolute certainty that the 2nd amendment was an individual’s right to bear arms and not the right of a well regulated militia. So let’s examine those two issues to start.

In order for a right to be absolute, a country must recognize, and so the government, that under no circumstance can that right ever be abridged for any reason. That means no one can ever take that right away from you for any reason whatsoever. People who argue that the Bill of Rights apply in just such a way, are quick to point out for instance, that at no time can anyone take away your right to speak freely. Now to be fair, I myself, have argued this point for a long time, however it is not something that the government is comfortable doing just yet. In fact, it is well documented that your right to freely speak has limitations, and as such it cannot by definition be absolute.

For instance, I cannot publish a work of non-fiction on a particular person sighting that this particular person molests children, sells illegal drugs, or steals from the elderly, if I know these statements are false. Doing so would cause me to be libelous, and a person could seek damages against me for such statements in a court of law. It’s also true that I can’t walk into a crowded theater and scream “fire!” if I know full well there is no fire. Doing so, may cause injury due to the panic associated with such an action. There are also many instances where lying to certain persons would cause a perjury charge to be filed, even though if my right to free speech is absolute as these people believe, I can say anything I want without repercussion.

The reason that rights can be abridged deals with a possible instance when one person’s right to something conflicts with another’s, and it’s in these cases that things become muddled. For instance in the examples above, my right to write a book on someone that states this person to be a bad person, conflicts with their right to not have their name and image tarnished. It is also true that screaming “fire!” in a crowded theater is a bad idea because my right to do it, conflicts with the rights of those people to not be injured as a result. There are clearly many other instances where this applies over and over. For example, you can’t walk up to someone you don’t like and simply hit them, or do worse harm to them, even if you feel justified in doing so. Justification, meaning a good reason, is by no means valid when causing harm.

Imagine, for just a second, what kind of country this would be if we were allowed to do this? It would be chaos, and as a means to stop just such chaos, laws are written to protect, which may conflict with your rights. And just as a matter of thoroughness, the 4th amendment which deals with unreasonable search and seizure has been routinely abridged as a matter of public policy in matters of public safety. Consider the FISA court which authorizes the government to secretly search people’s properties without their knowledge if they believe they are committing acts of terrorism. Also consider that people are routinely arrested and incarcerated without trial, if they believe them to be a danger to society, a clear violation of 6th and 14th amendments.

So now that I have dealt with the issue of absolute rights, let’s deal with the issue of that comma. In the second amendment, it can easily be interpreted that either a well regulated militia has the right to bear arms, or the people in general, depending on what side of the comma you fall on.

You can make an argument that the first line before states with certainty that a well regulated militia has the right to keep and bear arms; they are after all the people. This would be a means for the founders to sight with clarity that the people who form state militia, for the protection of this nation, do so with a non infringing right to have weapons. Imagine for a second that time in which this document was written, 1789, only thirteen years after the declaration of independence was written and voted on, and only eight years after our final battle with the British in 1781.

Invasion was a very real threat, a well regulated militia would be necessary to protect the freedom of the inhabitants of the United States, so a second amendment that gave militia’s the right to carry weapons was a good idea. The intention is worded right in the amendment, “…being necessary to the security of a free state…” That line implies that in order to prevent a country from invading ours, we authorize those militias to keep and bear arms. It does not imply that people, in order to protect themselves from tyranny, have the right to carry weapons, as many gun enthusiasts might suggest. This is a ridiculous assumption after all, when this document was written there was no belief that any such occurrence would take place even if they had just fought a war of independence.

Remember again, in this instance that the United States was a new country and could have easily been overwhelmed by another country or maybe a few, with enough force. Giving the right of the people to form militias allows, when necessary, people who are not ordinarily militant to become so, in cases when need arises, to protect the country for instance. It is hard to imagine for most people invasion as a real possibility, it rarely happens, however it happened all the time hundreds of years ago, and going back further, entire empires were built on this action. For example, Britain built an empire entirely by invading other countries, are we to assume that, the United States was in no real danger of such a thing, considering the nature of the world a few hundred years ago?

Now to be fair, it can also be argued that this amendment is two parts, indicated by the comma. It can be argued that, a well regulated militia is necessary; however the right of the people to keep and bear arms is also necessary. The issue I have with this assertion is that it’s unnecessary to state the obvious. If they really were saying everyone should be able to carry weapons, than its unnecessary to include the militia in that amendment at all, and instead keep it simple saying that “…the right of the people to keep and bear arms, shall not be infringed.” It is an unnecessary inclusion if you are stating the obvious, militias after all, are made up of the people, not dogs for example, but more so by the language, not made up of non-citizens of the United States. So I believe this argument to be a moot point, if you have a brain and are capable of using it, than a logical inference is that a well regulated militia being necessary to secure the freedom of the state, shall carry weapons and no one can take them away.

Now this is where the argument should end if that is all there is, but there is more. Many gun owners will argue that arms means just about anything. For example, if you take the 2nd amendment as being absolute, its interpretation to mean anyone can carry weapons, than there is no limitation to what that can be, hand guns, rifles, assault weapons, bazookas, tanks, nuclear weapons, etc. After all, if they are correct than the position of the government should be that any citizen should be able to carry any weapon. Now imagine again for a second, you live in 1789. Percussion-cap weapons were not invented until 1825, and the colt revolver, not until 1835, so all you have are flint-lock weapons.

That means that you have to load the barrel of your weapon with a projectile, and load the pan of your weapon with a spark in order to even fire it, a process which takes several minutes. Because of the nature of projectile not being designed with precision, and a tumbling effect, rather than spiraling effect, gun barrels were required to be very long to allow the projectile to follow a straight path longer before exiting the end to make it more accurate. That meant that guns were big and heavy and designed to be used sparingly. So it’s easy to see how a second amendment could be applied to a weapon such as this, but to assume that the founders meant all weapons is quite a stretch.

To be fair again, it is easy to assume the amendment was limiting to the weapons of the time, but to argue that the founders could not foresee innovation, is slightly ridiculous. In the 13th century when the Chinese invented gunpowder they used it by filling long tubes and firing projectiles, a kind of rocket. In the hundreds of years since, they would have easily realized that innovation would have produced better weapons, clearly seen by the invention of the first gun in the 14th century and the subsequent improvements over the years.

So I am not so naive to believe the founders could not have imagined better weapons, however they could not have imagined anything like we have today. People base their imaginations on the technologies of the time, and apply such technologies to conform around them. For example, the first science fiction novels written hundreds of years ago depict the technologies of the future, although certainly forward thinking, still applied a very real at the time, modern technological spin on things. Rockets to the moon were flung into space by giant sling shots, or the use of steam.

Although people are capable of envisioning future technologies, they must have a basis by which their imaginations have something to build on. The founders living in 1789 had no way to envision nuclear weapons, or even automatic weapons because the idea of such a thing was not pervasive of the time. It is conceivable that anyone creating laws in just such a time, who could foresee a future hundreds of years later with technologies so far advanced one would think them alien, might want to create some restrictions. It is the lack of such restrictions that can lead you to either conclude that they meant that this right was absolute, or it was not, and if it were absolute than any such restriction would be unnecessary. It is however, more likely to conceive that the founders were simply unable to foresee a necessity because they could not envision technologies so advanced, and because of this, we should take pause when considering the 2nd amendment just on this basis alone.

If taken as an absolute law, and written with no restriction of arms, than it is the right of the people to carry all means of weapons. However, most people would agree, anyone allowed to carry a nuclear weapon, or even a bazooka, is something that should not be allowed. And it is this consensus of the people that show we ourselves do not hold this law as absolute.

So if the consensus of the people is that gun control is necessary, why are we a nation filled with guns with a system that so easily allows anyone to get one?

The simple answer to that is that even public safety has a price. As I’ve stated many times, public policy is a matter left to the greedy and not the health conscious. Our elected officials bow to corporations, the kind who make guns and the kind that use them and money is the currency of the greedy.

Government exists for only a few reasons as illustrated by the preamble to our constitution:

 “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

We can take from this text that a government’s existence is merely to protect its people. This is accomplished through the process of law. We create laws to protect people from other people, whether it is foreign or domestic. This is further reiterated by the establishment of the Bill of Rights and Constitution as a whole. Our government was designed to be a regulating body, like all governments. That means it protects us, by establishing laws and enforcing them. So it is hard to believe that gun regulation cannot even be considered by our government, if said government’s existence is merely to regulate?

We regulate a lot in this country, from the food we eat, to the cars we drive to even the kinds of things we put in our medicines. We do this for the purpose of protecting people from themselves. It sounds like a ridiculous notion; however in general people do many stupid things that without regulation might cause more injury than it does. For example, until the 60’s cars did not carry safety belts. I think you would be a amissed to find anyone that would argue that cars should feature no such safety devices, or for that matter roller coasters,  child safety seats, baby strollers, or shopping carts. Or that we might decide that we need no FDA to regulate what food manufacturers put in our bodies or drug companies, the drugs we take.

Regulation allows people to feel safer about the products they use and in general the society they live in. For example, people feel safer knowing that laws have been put into effect that prohibits minors from drinking alcohol. This is mainly due to the fact that a minor can legally drive at sixteen but must legally wait until they are twenty-one to purchase alcohol. The same thing is true of mothers who buy baby formula for their infants. Imagine if that industry was not as heavily regulated as it is. People often take for granted the regulations that have been put in place as a matter of public safety.

So why is it that with all this regulation on everything else in this country, guns are something we cannot regulate?

Again, in matters of public safety, greed can overwhelm morality.

So let’s talk about the arguments that gun enthusiasts like to make for why their right to carry a gun outweighs the public right to be safe. Most gun enthusiasts believe they need to have guns for home protection, hunting, and recreational shooting.

The argument for protecting one’s home admittedly is a good argument, after all, in a society where we value our things above our lives it makes sense that we might want to protect said things. Or maybe you don’t agree, maybe you believe it is your life that is more valuable than your belongings. Well if you believe that, than you are on the wrong side of this argument, because carrying a gun in your home for protection is more dangerous to you and your family than it will ever to be to an intruder.

Research has shown that a gun in the home is 43 times more likely to kill a member of your family than an intruder, furthermore the very act of bringing a gun into an already violent situation is more likely to get you or a family member killed by said intruder than had it not been introduced. The reality of the situation is that an intruder that has broken into your home to take your things is unlikely to want to commit a violent act against you, and is likely to take what they want and leave without incident if they are left to do so. And if you really do believe that your life or the life of a family member is more valuable than your property than the argument for a having a gun in the home is not a valid one.

The argument that guns are needed for hunting at first seems to be valid, after all people do hunt for game and having a gun makes it a lot easier to take a target like a deer down than using for example, a bow and arrow. On this premise alone, they almost have me, however if this argument is meant to be taken seriously, than we should require a serious examination of what is actually needed to hunt game. I have heard the argument many times why assault weapons need to be legal, and someone always tells me they need them to hunt. However, I feel it necessary to mention the only valid reason for hunting with an assault rifle is if you are hunting humans, lower animals do not have the ingenuity to resist any kind of weapons fire, so something as sophisticated as an assault rifle, it can be presumed, is only useful in hunting humans.

Having said that, many might make the argument that the bigger the animal, the more powerful a weapon that is needed. For example, let’s say you are stupid enough to try and hunt bears, and if you are I don’t feel sorry for you if you are mauled by one. Bears are very large, built with lots of bone and muscle, and these two things alone determine the effect a bullet will have on them.

For your average size bear of a thousand pounds, a small handgun is not going to do the job; they simply do not carry enough kinetic energy and maximum potential force to do any real damage to something so large. So what caliber of handgun would do it? A .357 magnum, and higher like .454 and .500 certainly have the ability to take a bear down and they are all handguns. But even if you want to use something more accurate like a rifle at long range, you can find this caliber of rifles capable of taking down a bear at any gun store. So the argument for assault rifles as a means of hunting begins to sound a little absurd.

And what of the argument that having guns available for recreation is a valid reason?

Well like most people who have fired a gun, it’s an enjoyable experience. I have fired several different types of rifles and handguns and enjoyed doing so with each opportunity. However, this when I begin to think about it, is a little disturbing. 

What is it about guns that we enjoy so much?

For me, I enjoyed just firing the guns. But for some it’s the feel of the gun, or the sound it makes, or the force it has, in any case although these all seem valid, we should all consider something.

I imagine for a murderer, it feels nice to strangle someone, to hear the sound they make struggling to breathe, to feel the life leave them as their body goes limp.

So the question should maybe be: Why do we as Americans like our violence?

And what about the argument that guns don’t kill people, people do?

Well that is true, people do kill other people. But that doesn’t mean that we do not regulate the means by which criminals facilitate their crimes, all the time. For example, carjacking tools are illegal in this country. We also try to regulate the distribution of materials that could be used to for example, make home explosives. We are also quite careful to regulate biological, chemical, and nuclear materials in this country, which by themselves could be used nefariously but also used in a more benign manner.

And while we are on the subject of criminal activity, why is it ok to allow someone who is predisposed to violence the ability to facilitate that violence so easily with the purchase of guns?

Or for that matter, why is their right to purchase a gun, more important than my right to not be shot by one?

Remember when I talked about how the only time we abridge rights is when they conflict with the rights of others, or the rights of the public to be safe?

When a mentally disturbed person is able to purchase an assault rifle and a thousand rounds of ammo on the Internet without regulation, other than a criminal background check, there is something wrong. Someone who is predisposed to violence through no fault of their own, should no less be protected from committing violence against others as he would be protected from committing violence against himself. It should be the position of every rational person that no one who hears voices telling themselves to stab someone in the face should ever have an opportunity to do so if it can be prevented. And it is in this area that things become harder to regulate. Because restricting the rights of a group of people based on mental illness violates the constitution’s 14th amendment’s equal protection clause. However, as a matter of public safety, in times of necessity, rights can and are abridged.

And once you realize that ultimately you are comfortable with such an action, than the reality is you have already decided that the second amendment isn’t absolute and because of this unnecessary.

In the world we like to consider ourselves at the top, on legal and moral issues. But reality simply does not fit this notion. In the rest of the civilized world, gun control is a necessity government’s place on their people, not as a matter of moral high ground, tyrannical control, or principle, but as a matter of public safety. The fact is, less guns, means less gun violence and there is never an argument that could be used against that. The fact is most violence committed with a gun, is done so with a legally purchased gun, and in places where gun purchases are mostly restricted, gun violence goes down. You can’t argue with reality.

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