Groundhog Year, Part II: The History Of An Illusion

As I noted about a week back, being a Second Amendment activist for any length of time – I started in the late eighties – is a little like being Bill Murray’s character in Groundhog Day; every time the argument cycles, you wind up answering exactly the same questions.  Over and over and over.

Some of the questions -“aren’t you compensating for something?” – are stupid conceits.  Some – “isn’t a gun in the home many times more dangerous to the owner or people he knows than to criminals?”, or “wasn’t the Second Amendment put in place to protect slave holders?” – are well-worn, long-debunked tropes that keep coming back, just like the villain in the last two minutes of a monster movie.

And others?  Well, despite both sides’ oversimplifications, they keep coming back because the Second Amendment is a complex issue, full of historical, linguistic and legal nuance.

Notice I said “complex”.  Not “inscrutable”.  Because it’s Groundhog Day, and everything, including answering nearly all the questions, has happened before.  Maybe several times.

Eric Black – one of the phalanx of deans of Minnesota political journalism – wrote a series a few weeks back at the MinnPost (which is the recent recipient of a big grant from the Joyce Foundation, an anti-gun group that lavishly funds anti-gun astroturf groups around the country).  The first of the three parts, “The Second Amendment is a Mess“, came out probably three weeks ago.

Confederate soldiers. With guns. Be afraid; your betters have declared that the Constitution is all about slavery.  Except the First Amendment, and of course the emanations of penumbras that give us abortion.  But I digress.  Prejudicial? Do you think?  The MinnPost ran this in a piece about the Second Amendment, and I’m never going to let them live it down.

In stating the case that the Amendment is “a mess”, Black writes:

…the interpretation of any law must start with the actual language of the law as enacted. So, for today, let’s just put the text of the Second Amendment under the microscope. Here is its full text:

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.

It’s a marvelously unclear statement, to modern sensibilities – and yet for some reason it defined a policy, more or less, through nearly 200 years.  Until the 1960s, nobody really questioned that the “…right of the people” in the Amendment meant anything different than “of the people” meant in the First, Third or Tenth Amendments.

We’ll come back to that.  I’ll return to Eric Black…

…while noting that I’m getting that feeling Bill Murray had during the last three-quarters of Groundhog Day; it’s deja vu:

It’s a disaster. Seriously. Here’s just a sample of problems it presents.

What’s a militia? If you aren’t in a militia, does this have anything to do with you? Or perhaps (and this is roughly the current Supreme Court interpretation) what if “militia” is just an 18th century word for all the able-bodied males in a state who had better have access to arms in case their state needs them to secure its freedom even though they might not actually “belong” to what we 21st century-types would recognize as a militia, like a National Guard unit that you actually joined and were trained by and that actually has a command structure.

A fair point…

But if “militia” doesn’t refer to an organized group, what’s “well-regulated” doing in there? Who gets to decide whether the (actual or theoretical) militia you are in is well-enough-regulated to trigger (no pun intended) whatever impact the militia clause has? Who is doing the regulating? The state? The United States? The (non-existent but theoretical) organization of all the gun-owners in the state acting as self-regulators?

…and a vexing one.

Indeed, Black’s series seems to focus on three allegations about the Second Amendment:

  1. It’s linguistically and legally inscrutable
  2. It’s confusing
  3. In an era where the US has a standing military, it’s obsolete.

But the first two were rendered null and void nearly a generation ago.    And the third exhibits a myopia about history, to say nothing of the Constitution, that needs to be actively fought.

But none of them are new. Indeed, it’s been nearly 20 years since the first two points were put out to pasture among people who are serious about the issue of the Second Amendment.

As to the third?  Stay tuned.

We’ll come back to that on Thursday.

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