Wednesday, January 22, 2020

Guns and Commas

I am glad that the large pro-gun rights rally in Richmond on Martin Luther King, Jr. Day end without any violence as had been threatened by some people around the US.  That is nice, but it does not end the unpleasant situation legal situation that has arisen here in Virginia.  As of now 93 jurisdictions, mostly counties, have declared themselves "gun sanctuaries" where any gun control legislation passed by the Virginia government will not be enforced.  The bills currently having received majority support in the Assembly and Senate with support from Governor Northam include requiring uinversal background checks for all gun sales (while allowing intra-family gun transfeers without that), a one-gun per month limit on gun purchases, and an especially controversial "red flag" bill allowing for a person deemed to be a danger to themselves or others to have their guns temporarily taken.

I am located in the Shenandoah Valley where this "gun sanctuary" movement got going, with neighboring county to the south of me, Augusta, getting highlighted in an article about this in The Economist recently.  VA is the only state where cities and counties are distinct and separate from each other.  So I live in the City of Harrisonburg, which is surrounded by Rockingham County, which supported Trump with over 70 percent of the vote.  Rockingham County has joined Augusta in becoming one of these on a unanimous vote of its Board of Supervisors, although I know at least one of those not happy about this. But an angry gun-toting crowd showed up at the meeting.  In Harrisonburg such a crowd showed up at the city council, but left angrily after the council refused to go along with this garbage.

I shall note here that this absolute defense of gun rights follows the 2005 Supreme Court ruling written by the late Justice Scalia on Heller versus District of Columbia  when the SCOTUS ruled against DC's banning of handguns on grounds of a nearly absolute individual right to own a gun.  This ruling overturned over a century of legal rulings that put limits on the right to own a gun given the apparent tie in the Second Amendment between this right and the need for a "regulated militia."

This is where commas come in.  What separates the two clauses of the Second Amendment is a comma, which in standard grammar inexorably links them.  That individual right is clearly tied to the need for a regulated militia, and the history of this is known.  At a minimum for Scalia to make his case, there should have been at least a semi-colon, if not a period.

Of course, even the need for a regulated militia itself is stained.  The historical origin of this demand in the amendment as written by James Madison dates back to a debate in Richmond in which Patrick Henry insisted on the need for armed militias at the state level so that slave revolts could be put down.  This is the ultimate origin of the Second Amendment.

Barkley Rosser


ken melvin said...

It takes so long, 50, 100, ..., years for the court to correct it mistakes.

ken melvin said...

A judge should be wise enough to look to the possible consequences of his or her decisions. A judge should be wise enough to change his or her mind when the evidence merits. A judge should generally accord these qualities to the decisions of his or her predecessors; looking to their decisions as law. Given that judges pass judgment on others, a judge should be law abiding, of good moral character, ... above reproach.

At the present time we have three, maybe four or five, supreme court justices: Alito, Thomas, Gorsuch, and perhaps Kavanaugh and Roberts, who feel that they, more than anyone before them or now on the court, know how the constitution should be interpreted; would impose their interpretation on the nation no matter the consequences. Some consequences of this sort of thinking of late include: District of Columbia v. Heller. McDonald v. City of Chicago, Shelby County v. Holder, Citizens United v. Federal Election Commission, and, most recently, Rucho v. Common Cause; all decisions with horrendous consequences.

marcel proust said...

Can you provide some more identifying information about the Richmond debate and Patrick Henry? I've been looking for something like for the last few years, having read hints about the link between the 2nd amendment and slave patrols (which I have heard could impress any adult white male) and have come up pretty much empty (more a tribute to my googling skills than anything else). A book, a link, information that would let me focus my search better.

Thank you

Don Coffin said...

It was also the case that, following independence, the federal government had almost no army (it did have a fairy substantial navy, for dealing with smuggling, for example).
"When Washington was inaugurated as president in 1789, the number of men in service was 595"
"One of the first tasks Washington assigned to the secretary of war, Maj. Gen. Henry Knox, was to prepare legislation for a military policy as outlined in his Sentiments. The principal element of this proposed legislation—establishment of a centrally coordinated militia system—was rejected by Congress in the Militia Act of 1792. This decision by the lawmakers was partly because of fear that Knox’s proposal would concentrate too much power in the hands of the federal government"
"Until 1812 the army passed through swift periods of expansion and reduction, depending upon the immediacy of the Indian and foreign threats. From a single regiment in 1789, it changed to 3 in 1791, 5 in 1792 (in the wake of Saint Clair’s Defeat), 9 in 1798 (during the XYZ Affair and quasi-war with France), 6 in 1800, 3 in 1802, and 11 in 1808."
In 1846, the standing army had 8,600 men.
In 1914, about 25,000.
In 1939, 190,000.

So at the very least, prior to the Civil War, the existence of *state* militias was probably somewhat important. As the size of the US military establishment grew, the importance of state militias has inevitably declined. And now, it's fairly clear that "A well regulated Militia," far from "being necessary to the security of a free State," has become an anachronism. And, thus, as it seems to me, regulation of the type of weapons that people might reasonably be allowed to possess is a legitimate government function. And that function can best be served by uniform national regulations (see, for example, the ease with which people in Chicago can acquire weapons simply by driving to northwest Indiana).

JDM said...

Here's a couple links on the 2nd amendment and slave-hunting militias.

Art said...

First I've heard of that but possible. My understanding, from debate materials 9n the constitution, was that a group from rural Pennsylvania with anti-federalist tendencies submitted a demand for enumerated right that included he personal right to bear arms.

Art said...

Thanks for those. Another interesting angle:

Seems perhaps southern delegates took (or came up in parallel with) an idea proposed by skeptical Pennsylvanians and shaped it to preserve state militias as instrument of order/oppression?