The Eclectic One

…Because labels are a poor substitute for thinking

More on gun-phobes’ lies

Posted by Bill Nance on August 19, 2008

I realized last night that my post on Judge Posner’s article was short on rebuttal, so I’ve decided to write a little more detail on why I disagree so vehemently with Posner’s central arguments. If you already understand why the right to keep and bear arms is not just about militia but can’t articulate it, this might be helpful to you. If you are one of the many people in this country who have been fed the “Guns are BAD” line for so long you didn’t know there was any rational counter-argument, I encourage you to at least give me a fair hearing.

To begin, let’s look at the Second 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.”

The first portion of the amendment concerns the need for a militia, and the need for that militia to be properly regulated. The militia, it’s officers and its arming are covered in the original, unamended document, section 8, which,grants congress the right: “To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”

In his article, Posner takes the position that this is the only purpose of the amendment.

“…The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.” (emphasis mine)

This argument flies in the face of historical facts about the time of the framing, the concerns of that time and the historical background behind the constitution.

Around the world at the time, but particularly in England, with whose laws the framers were quite familiar, forests and lands were almost completely owned and/or controlled by the nobility. It was a crime for the people to hunt, trap or even forage for wood in these preserves of privilege. The penalty for violation of these laws was often death. In the new nation which they were founding, the framers wanted nothing of the sort. In several of the state constitutions which predated the U.S. constitution, rights for individuals to keep arms, rights to hunt on any non-enclosed property and rights to the use of arms for self-defense were explicit. Delegations to the Constitutional Convention itself, including Samuel Adams, the New Hampshire delegation, the Pennsylvania delegation and others, proposed specifically the right of individual arms ownership to be included in the original document. Only the promise of a bill of rights to be passed by congress mollified these concerns, and even there was plenty of dissent.

One of the arguments the “militia only” interpreters of the Second Amendment like to use is that in the arguments for the constitution by Hamilton and Madison, they go to great lengths explaining the need for regulating and arming state militias by the federal government, but say nothing of private ownership for hunting and self-defense. But this ignores the reality of the time in which private gun ownership was quite high and the use of arms by individuals was an assumed right as well as one which had been stepped upon by the British when they confiscated the arms of all people in the areas they could before the war. The people of the time were rightly concerned about a tyrannical government taking away the ability of the people to resist by a confiscation and prohibition on the keeping of private arms. This fear is further understod by a look at English history, in which the government had a long history of disarming its subjects for the purpose of imposing its will and removing any ability of the people to oppose tyranny.

I hope these facts show quite clearly that the framers and the citizens of the time took for granted a right to keep private arms.

Posner’s next point, which he discusses at great length, concerns the need for a loose interpretation of the constitution, lest poor or vague wording of a law be taken to ridiculous lengths.

This is a straw man argument.

While the more conservative members of the court claim to take an originalist point of view in general, (and talk about it more than they act on it) none of them have disputed the need for an interpretive approach in general, nor did they in Heller . In fact the decision explicitly states the need for reasonable regulation of the right. To pretend otherwise is a willful distortion, for which gun-phobes are famous.

He also takes issue with the historical arguments made in the Heller decision:

“…The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.

This is strikingly shown by the lengthy discussion of the history of interpretation of the Second Amendment. Scalia quotes a number of statements to the effect that the amendment guarantees a personal right to possess guns–but they are statements by lawyers or other advocates, including legislators and judges and law professors all tendentiously dabbling in history, rather than by disinterested historians: more law-office history, in other words.” (emphasis mine)

This argument is so ridiculous it’s hard to believe a man of Posner’s no doubt high intelligence has the moxie to make it.

If you have been to a history course, or read many historical works,you will know how very few and far between “disinterested historians” are. In fact, a great many historians are more interested in shoving their interpretations of events down their student’s throats than they are in “disinterested inquiry.” Even the best, most rigorous and fair-minded historians have opinions. And in the absence of solid documentary evidence, or where that evidence is contradictory, prejudice prevails more often than not. I’m not faulting historians, this is a common trait shared by almostr everyone. That is, the tendency to make decisions or judgments which fit with one’s own world view unless the evidence to the contrary is overwhelming (and often not even then).

Finally, Posner argues about the general inconsistencies of the court’s rulings in regard to the government’s rightful authorities and limitations.

With this, it may surprise you, I have no disagreement.

The court’s opinion has indeed been confusingly contradictory on a number of issues. I agree this is a genuine problem. Sadly, it’s one I see little likelihood of changing as long as the political environment in the United States is so poisonously partisan. But this is not an argument against the Heller decision. It’s an argument that the court has some deep flaws and as a result its rulings cause problems with lower courts’ ability to understand precedents. Ok, I’m with Posner on the point that this inconsistency is problematic.

But Posner condemns Heller, and further condemns the very notion that Americans have a right to keep arms to defend themselves, their property, to hunt, or hobby shoot as pleases them within reasonable limitations merely because past rulings are conflicting and the political environment has become partisan to the point of paralysis. This is no argument with the issue. It’s an argument for reform of the system, or at least the current political environment. In other words, it’s not pertinent to the issue at all.


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