Whatever Happened To … ?

There was a presidential election last November. No one got a majority of the votes. It happens when there are more than two reasonably popular (or unpopular) candidates. What results in such an election is that one of those running has a plurality – more votes than anyone else, but not a majority. And that person is usually chosen President.

But not always. And that isn't what transpired in this election. The system we use puts the final decision in the hands of an “electoral college,” a construct that lets a majority of voters in each state register votes for the president, which are cast almost always unanimously by the electors who proffer the state's votes. That prevents a few states with large population from deciding a result that may be detrimental to the majority of the states though they lack a majority of voters. It's a constitutional provision.

And whenever it occurs there's a demand that the Constitution be changed and that popular vote be the deciding factor. That's what just happened this time. (Although attention to the problem disappeared when other things appeared in the news. Whatever happened to all the rage that initially surrounded the issue?)

Changing the subject a bit, the second amendment to the Constitution provides for arming of “the people.” There are many, myself included, who believe the amendment is too broad – perhaps even unwise in our times – but it's part of our Constitution, our laws, and we're obliged to accept it.

Yet whenever there's a violent incident involving a firearm there is immediate outrage and protest regarding the amendment. However the situation is usually forgotten quickly by most of our citizens as other news supersedes it. And those who continue opposing firearms wonder whatever happened to the anger. Our attention span is limited.

That's the way it is with most issues today. The world's changes and the news in general come in such great volumes and variety that we get excited only for the moment and then forget our indignation and move on to the next issue. Most problems are not solved. Of course if new legislation aids a particular lobby, or improves the image of some politician it has a good chance of implementation – if the opposition isn't sufficiently significant.

But there's another way that change takes place. Even if we don't change the laws we can alter our understanding of what they mean. The courts do it all the time. Thus, for example, although the courts acknowledge and affirm the Second Amendment – they're sworn to uphold the Constitution – they're quick to permit limitations of the “right” as legislated by individual localities. Hence there are requirements for registration of the weapons, requirements for training of those permitted to own them, safety rules, and a plethora of other regulations that control use. Proponents of such restrictions demand further limitations – at least that's what they encourage – but their real goal is elimination of the amendment. And perhaps their goal is worthwhile.

The use of interpretation is time honored. It occurs in regard to religious dicta and literary works, in addition to legal ordinances, and the idea has much merit. Not only does it allow for the filling in of lacunae which were intended by their authors as foci of thought, but it allows advocates of change corresponding to modern conditions.

But there are many who believe that the courts “interpret” laws to coincide with their own biases or those of the “squeaky wheels.” Not always, but enough of the time. Hence there are new definitions of privacy (a concept not mentioned in the Constitution) to include an array of sexual practices, decisions about health, and others issues involving various “isms.” There are other “interpretations” as well. Though I favor some of them, I'm not certain that the writers of the Constitution and its amendments would approve. “Whatever.” they would wonder, “happened to the rule of law? We gave them a mechanism to change the Constitution, but they have chosen to protest and 'interpret' their way around those provisions they don't like.”

I agree. Much of what currently favors alternatives to the document as written are based on whim, bias, and fashion. That doesn't mean they are wrong, though some of the views are clearly out of touch with the views of a majority of Americans. But many assert that we're as smart as the Founding Fathers and we're attuned to recent societal changes. What we want makes sense.

That view the Constitution's authors would surely support. And they would reiterate a challenge to rewrite or add to the Constitution on which our democracy is based. The process is difficult, but there is a process. Not just loud voices.

Whatever happened to process and order?

Bang, Bang, Bang

                                                                                 

First things first.

I strongly favor gun control. But I have two problems. The first is that I don't know what it is. And, since gun laws are controlled largely by the states rather than the Federal government, they're all different. Surely the armed forces and the police need to be armed, but after that, things become murky. Whatever the views of vegetarians, there will always be hunters. And they want more than sling shots and bows and arrows. Buffalo Bill used an 1863 Springfield, and rifles seem appropriate as hunting weapons, though not everyone would consider hunting to be defensible. Hunting as a sport, as opposed to hunting for sustenance as our ancestors did, is difficult to defend, at least for me. But there are many who consider it justifiable. Indeed, they see it as part of the “American Way of Life.” Human life, that is. Those who are hunted might view it differently. Even so, it doesn't seem likely that most hunters would use side arms or automatic weapons to down a deer or a rabbit. But I'm not a hunter, so I don't really know.

Nonetheless, I have another problem. The Supreme Court has decided that the Second Amendment sanctions the personal ownership of weapons.ⁱ So it's the law of the land. What kind of weapons? Justice Scalia tells us that “Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and 'bear,' so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchersⁱⁱ that can bring down airplanes, that will have to be decided.”ⁱⁱⁱ That's a frightening idea, but since the purpose of the amendment was to ensure “a well-regulated” militia, and there was concern about our own government, our Founding Fathers wanted to give the states and their citizens the ability to defend themselves against Federal troops.^iv The Justice noted that there were some limitations on the weapons that could be carried,^v but the principle remained.

So that's the law. It's important to note that the revulsion with guns and gun violence isn't universal. Even if most people are opposed to the free sales of weapons, police are not. A majority of law-enforcement personnel^vi favor laws permitting private ownership of weapons. Some believe that it is necessary to have guns for self-protection. After all, they argue, the criminals will continue to have guns, so law-abiding citizens need them as well. I'm not convinced. Clearly there needs to be better enforcement of existing statutes as well as harsher penalties^vii for those who possess illegal weapons, but that's better than than an increasing number of guns in the environment. Still, the Second Amendment doesn't express a need to bear arms to protect against criminals. It was for protection against the government. And perhaps the most dangerous gun owners are those who are so paranoid that they are fortified against invasion by our own troops. But it was for them that the amendment was written. Indeed, apart from the need to pay off the debts incurred in our struggle for freedom, the American Constitution only approved taxing to “provide for the common Defence [sic] and general Welfare^viii of the United States.”^ix And our defense was to be provided by State militias rather than a standing Federal army.

So the Second Amendment and the actions of the founders of our country are completely understandable. At least in terms of the situation at the end of the eighteenth century. But times have changed. Our protection from attack is now the responsibility of the Federal armed forces, not of state militias. Those militias may be activated, but their arms will be provided by the government. Weapons that they keep at home will not be a part of their supplies. Notwithstanding the Bill of Rights, that “well-regulated militia” will be supplied by the quartermaster. And the police, who form the domestic protection corps, will also be issued weapons to carry out their duties. If privately owned guns are constitutionally authorized, it's clear that their purpose is not for the formal protection anticipated when our nation was formed.

Is there a solution to the problem?^x It seems unlikely that the Supreme Court will reverse itself, so unless the Constitution is further amended,^xi gun ownership will continue to be permitted. But regulation by the states remains as a possibility, and the first step is stricter enforcement of existing laws. Mandatory sentences for those who violate state restrictions would be desirable – especially for those who use the weapons criminally or have prior criminal records. Illegal sale of guns should justify long jail terms for those who participate in such activities, with geometrically increasing sentences as the number of weapons increases. In addition, tighter controls on licensing^xii and safety may be helpful, as will better supervision and limitation of the venues where arms sales are permitted. Gun shows, for example, should be carefully monitored and records of all sales that occur at such shows should be supplied to state authorities. Reporting requirements and background checking should be at least as strict as they are in fixed establishments. And similar regulations should apply to materials sold over the internet or through the mail.

Dealing with the situation on a state-by-state basis will be more time-consuming and expensive than by a single congressional bill, and the results will be more inconsistent, but the regulation of firearms by the states is more likely to be effectuated, notwithstanding the NRA. While that is going on, attempts should be made to amend the Constitution in a manner that will protect not only gun aficionados, but an anxious public. Weapon ownership is not a right I want to defend to the death.

Next episode: “The Olympic Spirit” – The myth and the reality.

i       District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. Chicago, 130 S. Ct. 3020 (2010).

ii       You should be able to bring down a rabbit with that. Even Bugs Bunny.

iii       Fox News Sunday, July 29, 2012

iv     Why else would people need automatic weapons and rocket launchers?

v      And various limitations are placed by individual states.

vi      Not to mention the NRA and its members.

vii    Including mandatory sentences. Those who believe that gun ownership is necessary for their well being should go through required safety training as well as licensing.

viii   In this context, “welfare” certainly refers to protection against foreign invasion.

ix      United States Constitution, Article 1, Section 8.

x       Whether I'm in the majority or the minority, I consider it a problem. From my perspective, the Supreme Court got it wrong. The purpose of gun possession was for the militias, and privately owned weapons are not what the military will be called upon to use. Unless they're muskets. But those are not likely to be of much use any more.

xi       Amendment of the Constitution has been proposed and attempted, but it is a difficult task. While this avenue should be followed, it seems unlikely that it will lead to a solution. Surely not in the near future.

xii     Particular attention should be paid to qualifications for the ownership of bombs and bomb-making materials, as well as ammunition, automatic weapons, and especially threatening weapons like rocket launchers. Gun ownership may be a right, but the states may legitimately regulate some aspects of that ownership.