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Tuesday, October 16, 2012

When the First Amendment doesn't work, try the Second.

When the First  Amendment of the Constitution leads to  animosities that can't be resolved, go  to the Second Amendment.   Get a gun.  Use it.   

Malala Yousafzai
The Taliban in Pakistan have put on a demonstration so that we can see how this principle works.  In 2009, they issued an edict, or whatever you call it when some power faction decides to dictate its terms to people, that all girls' schools must close, and no girls could go to school.  Some folks didn't obey.  Malala Yousafzai, who was 11 then, was disobedient.  She not only went to school, she wrote and spoke out  for girls going to school.  This went on for three years.  Last week, the Taliban got fed up with this exercise in free speech and shot her in the head.  She is 14 now.  She has been flown to the United Kingdom for specialized treatment.  

Malala was shot in the head, and two of her  classmates with whom she was walking home from school were wounded.  Some folks may feel revulsion and outrage at the shooting of school children, but the shooters were exercising their right to profess their faith.  When their words did not sufficiently intimidate these children and their parents, they sought the Second Amendment solution.  They certainly got the world's attention.  For a minute or two.

You might call the shooters a militia.  The proponents of their particular brand of faith would consider it well regulated one.  Other countries have militias, too.  In the absence of any other security forces, Libya has a number of militias.  One of them was well regulated enough to take out the consulate in Benghazi and kill the U.S. ambassador and three other diplomatic employees. That incident, too, demonstrates the efficacy of bearing and using arms.  

The main concern of the Second Amendment when it was proposed was to provide an equipped militia to call into service if the security of the country was threatened.  That objective was evident in the first draft of the Second Amendment as written by James Madison:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
 As finally finally approved, it reads:

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.
There are two major approaches to interpreting the Constitution.  One is called originalism and is based upon studying the context in which the articles were written and applying the Constitution according to what the framers intended.  Using this approach, the Second Amendment was clearly about ways to raise an army to defend the nation, if need be.  Wikipedia outlines the history of the right to bear arms, and maintaining the capability of raising a defense force was the main intent in defining that right.  

The second major approach to Constitutional interpretation is literalism.  It bases its interpretation on the language of the Constitution, not its historical context.  Literalism contends that whatever the framers intended, the Constitution was ratified through votes in Congress and by people in the states, and one must take into account what the people thought and still think the words meant.  That is how the Second Amendment has been interpreted to allow citizens to possess and carry any kind of armor they wish, based upon the idea that to do so is an ihherent right which stems from the right to defend oneself.  

The problem with the literalist approach is that the Second Amendment is flawed by some bad writing.  At the time it was written, the grammar rules in existence were vague and arbitrary.  Grammar at the time was based upon Latin grammar.  The problem is that Latin is a highly declined and inflected language in which the way words relate to and define each other are established by the way they are declined.  English is a syntactic language in which the placement of words in the sentence defined their relationship to each other and the way they modify each other.   Grammars based upon the syntactic structure of English did not come into general use until the 1830s, some 50 years after the Constitution was written.

The Second Amendment is a notoriously bad sentence.  It would never get by any certified English teacher of the 20th century and since.   It is a classic example of a dangling modifier.  It is not clear how the clause A well regulated militia, being necessary to the security of a free state, modifies the imperative clause the right of the people to keep and bear arms shall not be infringed. A contemporary editor or English teacher would send the sentence back to the writer with the question "Just how is the right to bear arms to be related to the maintaining of a militia and the security of the  free state?  Rewrite!"

Currently, retreating to a tradition from the Latin, the first clause is termed preparatory, which means it merely suggests a general context, sort of like a clearing of the throat before one gets to the important part.  In the current interpretation, the second clause is all that matters and one need not be bothered about how a militia or the security of the state relates to it.

Jefferson wanted the first comma eliminated, so that "being necessary for a free state" was not mistaken as an appositive that could be omitted in reading to the heart of the sentence.  Other interpreters have fussed over those commas as the confusing culprits in making it difficult to clearly determine the intent of the sentence.  Others have suggested the first clause is intended to be a restrictive modifier on the right to bear arms and the amendment should be read in terms of maintaining a well regulated militia for the defense of the country, and that is not what cannot be infringed.  Other laws governing the bearing of arms should be left to the states and local governments. 

Of course, the boys who tried to blow Malala's brains out or those who killed Ambassador Stevens did hot have to worry about any Second Amendments.  They just bore arms and used them.  

Politically, the U.S. is experiencing a divide among its people to a degree that has not been experienced since the Civil War.  The right and left wings hate each other with the intensity that abolitionists and slaveholders did.  And some of the racial attitudes involved in that episode of American history have resurfaced.  In addition, it is clear now that there is a class war shaping up.  We just haven't got to the shooting part yet.  We saw some of it 40 years ago when some dissenters tried some Marxist tactics, but this time it is more like the violent years of the labor movement.  It isn't just that the middle and lower classes are realizing that they are systemically having a gross inequality of wealth and earnings imposed on them, but that they are being designated a subservient class whose destiny is governed by the wealthy,  a full-fledged plutocracy.

When the laborers revolted, their instrument of violence was lead pipes.  This time around we have assault rifles.  The First Amendment is not working because those who hold the wealth and power don't hear those who feel systematically cheated and designated as serfs dependent upon the largesse of the wealthy, not the honest earnings of their own efforts and labor.  So, the Second Amendment is there as currently interpreted.  And Islamic militants have demonstrated how it may be applied.

Here we go again. And it won't be an argument about commas and dangling clauses. 

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Aberdeen, South Dakota, United States