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Sotomayor, guns, the 2nd amendment and constitutional idiocy
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Judge Sonia Sotomayor's confirmation hearings promise to be contentious. Probably the most contentious part of the hearings will be about the reversal of her lower court ruling regarding an issue of race in the case of the New Haven firefighters which the Supreme Court reversed.
But there will be some Senators, both out of sheer ignorance of the Constitution and also to pander to certain interest groups made up of gun owners and gun organizations, who will question her on rulings she made regarding gun laws on the grounds that she is hostile to the 2nd amendment right of an individual to own a gun.
Of course the problem with that line of thinking is that there is no 2nd amendment right to own a gun, and that is not in dispute among anyone who knows the constitution which admittedly leaves out at least 3/4 of the members of Congress and probably half the states attorneys general in the country .
The fact that there are so many people ignorant of what the 2nd amendment means and who insist on repeating the myth that the 2nd amendment has anything to do with an individual right to own a gun doesn't make it so.
What is so interesting about those who are so ignorant of the 2nd amendment is that it spans the entire political spectrum from ultra liberal Jerry Brown to conservatives like Bob Barr, from President Obama and Jimmy Carter to Newt Gingrich and Lou Dobbs.
In an earlier article about the 2nd amendment I proved beyond a shadow of any doubt that the 2nd amendment has nothing to do with an individual right to own a gun. And the facts are irrefutable.
Regarding Sotomayor, the fact that not one of her decisions regarding gun cases were even appealed much less reversed, as was her decision in the New Haven racial discrimination case, should put to rest any issues and any grasping at straws regarding her rulings and their constitutionality when it comes to guns.
But what the hearings may finally do is put to bed this incredible ignorance over the 2nd amendment, ignorance which quite frankly does gun owners no good at all. Except to constantly put them on the defensive because every time they try to invoke the 2nd amendment to achieve something they want, they lose. And always will. Because the 2nd amendment has absolutely nothing to do with an individual right to own a gun and never did. And so it is actually in the interest of pro-gun organizations and gun owners to drop these constant references to the 2nd amendment since it will get them nowhere and instead use other tactical means in support of their positions.
I've said this before and I will say it again -- there is not a shred of evidence anywhere that guns in the hands of law abiding citizens are any threat to the public safety. When it comes to making arguments against gun laws that do nothing for public safety but use firearms as a political football, gun owners have the majority of facts on their side and that should to be enough to make their case.
To try to rely on a 2nd amendment right that doesn't exist only makes their position more difficult because they will lose that argument every time and continue to be on the defensive. What gun owners need to do is exercise their first amendment rights and apply whatever political pressures they choose, whether its through contributions to legislators who support their position or to finance campaigns against legislators who oppose their position, and that will get them further than this losing battle that the 2nd amendment gives them rights and that it applies to individuals.
But don't take my word for it. This is what former conservative Chief Justice Warren Burger , appointed by Richard Nixon, said about the 2nd amendment. He said that "the second amendment has been the subject of one of the greatest pieces of fraud-- I repeat the word 'fraud'--on the American public by special interest groups that I have ever seen in my lifetime."
"the Second Amendment doesn't guarantee the right to have firearms at all. " Burger said that the purpose of the Second Amendment was "to ensure that the 'state armies'--'the militia'--would be maintained for the defense of the state. "
This is of course obvious. Even the most tortured liberal approach to the constitution cant get around the facts relating to the 2nd amendment. The 2nd amendment isn't a smorgasbord where you get to pick and choose what words you think support your position and pretend the other words don't exist.
The Constitution was written by the greatest collection of minds this country ever had in one place at one time -- Jefferson, Franklin, Adams, Hamilton, Madison and the rest. They had a tremendous command of language as the Declaration of Independence and Preamble to the Constitution shows, and they knew exactly what they were saying and how to say it. And they knew exactly what they meant.
There were no accidents in the Constitution. And the second amendment was rewritten and revised seven times. All seven versions are in the Library of Congress to be seen.
The Framers of the Constitution debated every word in the 2nd amendment and knew what every word meant and what they intended. They debated the 2nd amendment for weeks and continued to change a word here and a word there so it meant exactly what they intended it to mean. And that is the foundation for any application of the Constitution -- original intent. When it is clear what the Founding Fathers meant and intended in the Constitution, that and only that is what is applied.
Most misunderstanding of the 2nd amendment comes from complete ignorance of what the words, "to keep and bear arms" means. Lou Dobbs misuses it every time he does a peice on the 2nd amendment, It doesn't mean what someone thinks it means. It means what the Founding Fathers intended it to mean. The word "arms" doesn't mean the gun or collection of guns in someone's house. The word "arms" meant the same thing in 1789 as it did in 1066 at the Battle of Hastings and in 1959 when there was an arms race between the US and the Soviet Union. It meant one thing and one thing only to the Founders and to anyone else who understands the english language. "Arms" means weapons of war.
The "arms" mentioned in the 2nd amendment referred to just that. It meant rifles, cannon, cannon balls,powder, rockets, swords, bayonets, even war ships -- any and all weapons of war -- anything "neccessary to the security of a free state",
And the 2nd amendment guaranteed the states the right to have those and any weapons they wish -- the same weapons as the federal army. And that right continues today. Which is why we have national guard units -- what the militias have morphed into -- fighting in Iraq with their own tanks, F-15's, and other weapons.
The term "to bear arms" also has a specific meaning.And it doesn't mean to go hunting or shoot an intruder or take target practice. It also meant one thing and one thing only. It meant to go to war.
The right to keep and bear arms in the 2nd amendment gives the states the right to have their own armed militias, to have any weapons they wish without restriction of any kind and to use them as they see fit -- to defend themselves against any foreign enemy and to defend themselves against the threat of a future president who might decide to become a dictator and try to take over the country with military force.
As for the words "the people", any constitutional scholar will tell you that when the constitution is talking about an individual right it uses the word "person" and when it is talking about a states right it uses the "the people". "The right of the people" means the right of the individual states.
There are two more irrefutable aspects that prove the 2nd amendment has nothing to do with the individual. One is the last clause which says "shall not be infringed". That clause alone, if the 2nd amendment was a personal right, would invalidate every gun law on the books. It would have made Wyatt Earp's banning of guns in Dodge City unconstitutional as well as New York City's current concealed weapons law which carries a mandatory 3 year jail sentence.
The final proof is that when the Constitution was ratified in 1789, America was 90% rural. Having a gun was as common as having a hammer or a wheelbarrow or a pot to make stew. Guns were used to hunt, to protect livestock from predators and to defend against Indian attacks. Everyone had a gun.They were a neccessary tool. Having a gun was as common as having a lawnmower today in Larchmont. The idea that Jefferson, Adams, Franklin, Hamilton and the rest, debated for weeks and revised seven times an amendment to the Constitution dealing with whether or not people should be allowed to have something as controversial as a lawnmower is absurd.
No one was thinking about taking guns away from anyone and so no one was thinking about giving people a right in the constitution to keep them.
There are sure to be Senators who, like most politicians, will pander to those who insist on promoting the myth about the 2nd amendment. and will show how ignorant of the consitution they are. But as Will Rogers once said, "its not what people know that make them look like fools, its what they think they know that aint so."
Sotomayor's decision on race is going to be an issue. With only 47% of the country supporting her confirmation its going to be an opportunity for Republicans to score points and put Democrats on the defensive on an issue that for decades has belonged to the Democrats. But the 2nd amendment issue is just a side show. And like in years past, wont get anyone anywhere.But in the end, it may expose how little of the constitution the people who are sworn to uphold it really know. Or how much they are willing to pander.
Of course there are those will fervently disagree. Myths die hard. But this is not a matter or question of agreement, only what's true. If the 2nd amendment had anything to do with an individual right to own a gun, why do federal, state,and local governments keep passing laws that supposedly violate it? Are they just stupid? Are their lawyers stupid? And if so why doesn't someone challenge these laws in court instead of just complaining?
Gun groups are some of the most well organized and well financed special interest groups in the country.And they have good lawyers. If they are so sure that the 2nd amendment is an individual right why don't they simply stop complaining about it and challenge any gun law in any locality on the grounds that it violates the infringement clause of the 2nd amendment?
If they are as right as they think they are, they will win and every gun law on the books gets struck down on the grounds that they violate the 2nd amendment and everyone can drop it as an issue. And the same will be true if the courts prove them wrong.
But gun groups don't challenge these laws on constitutional grounds, and that says more about what they really think the 2nd amendment says than anything else. Which is why we will probably see a dog and pony show from a few Senators questioning Sotomayor on the 2nd amendment and who will then, when its all over, go back to what they always do when they know they have just been pandering for votes and campaign contributions -- nothing.
UPDATE: At her confirmation hearings Tuesday morning, Sotomayor, under senate questioning, reiterated not just her view of the 2nd amendment, which she used in deciding a lower court case that gun groups criticized, but pointed out was also supported in Heller, by Justice Scalia as well as years of Supreme Court precedent -- that the 2nd amendment is NOT a fundamental right and does not apply to the states or to any laws any state may choose to impose on their citizens regarding guns.
Copyright Marc Rubin 2009
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