Bill of Rights II.

 

The Articles of Confederation provided a poor sort of national government. The “United States” received scant respect either from foreign or state governments.  The men who authored the Constitution were determined to correct this fault.  However, they knew that the great majority of Americans feared the power and ambition of any central government.  Like the British monarchy, even the most “liberal” government might become tyrannical.  For example, a government might seek to abolish slavery in the Southern states merely because a numerical majority found it abhorrent.

Consequently, James Madison designed a government based on the separation of powers.  The executive, the legislature, and the judiciary would be co-equal branches of government.  Each branch would work to hold in check the pretensions of any over-mighty individual branch.[1]

Some delegates to the constitutional convention in Philadelphia worried that these provisions did not go far enough in insuring individual liberty.  Elbridge Gerry and George Mason proposed addition of a bill of individual rights.  This was rejected.  Later, Richard Henry Lee proposed that a bill of individual rights be added to the Constitution.  This, too, failed.

James Madison had argued against any bill of rights.  He believed that such a bill would do no good against a “republican” government based on popular sovereignty.  That is, the “people” would brook no opposition from a minority.  Furthermore, a government might interpret a Bill of Rights as stating the maximum, rather than the minimum, liberties of the people.  However, during the ratification process it became apparent that many ordinary citizens shared the reservations of Gerry, Mason, and Lee.  Essentially, they believed that even the most “liberal” government might become tyrannical over time.  Madison had argued that no bill of rights need be included because the division of powers and the conflict between interest groups would hold tyranny at bay.  This argument failed to persuade many of his readers.  The promise to add a Bill of Rights then became a bargaining chip in the effort to persuade state conventions to ratify the Constitution.  Six states recommended that a Bill of Rights be adopted once the Constitution had come into effect.  There were only 13 states then, so…

Madison abandoned his opposition to a Bill of Rights.  He wrote his own.  He offered these to Congress in June 1789.  He proposed to splice-in Amendments One through Five within the Constitution itself in Article I, Section 9, between Clauses 3 and 4.   Clause 3 bans Bills of Attainder.  Clause 4 bans direct taxation except equally according to the census.  In short, Madison intended that the Bill of Rights be individual rights.

Added instead as an appendix to the Constitution, they were adopted by Congress and ratified by the required number of states by December 1791.  Critically, the Ninth Amendment stated that “The enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”  In this way, Madison responded to his fear that a tyrannical government might treat a Bill of Rights as a maximum statement of the rights of individual citizens.

Subsequently, the courts, including the Supreme Court, held that the “right of the people” referred to the rights of individuals.  Freedom of religion is an individual right.  Freedom of speech is an individual right.  The freedom to petition for redress of grievances is an individual right.  The right to be safe from unreasonable search and seizure of papers is an individual right.  The right to not be compelled to testify against oneself in a court of law is an individual right.  The right to trial by an impartial jury is an individual right.  The right to not suffer cruel or unusual punishments is an individual right.  God save the United States of America.

[1] Although that left the danger that two branches might, for their individual reasons, gang-up on the third branch.

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Bill of Rights I.

English people, including the Anglo-Americans, understood their history as the product of a bitter struggle between tyranny and freedom.  Stuart absolutism had sought to restrict the rights of Englishmen.  This led to the English Civil War, the execution of King Charles I, and the republican Protectorate.  The Stuarts had been restored in 1660, but had acknowledged the role of Parliament and the laws as guardians of the rights of Englishmen.  King James II (r. 1685-1688) had tried to tip the balance toward French-style absolutism during his brief reign.  This had triggered the Glorious Revolution of 1688, while the constitutional fruits of that revolution had been harvested by the terms of the Hanoverian Succession in 1714.

Britain’s American colonies, and New England in particular, were peopled by the descendants of anti-absolutist Englishmen of the mid-17th Century.  The Englishmen who did not migrate had fought the English Civil War and created the republican Protectorate government.  The two groups shared many ideas.  These ideas were in some respects, pre-Enlightenment, rather than Enlightenment ideas.  John Locke occupied a central position for both strains of thought.  Locke had argued that a “social contract” bound both governors and the governed.  If either party broke the contract, then the other party was not bound to comply with the terms of the contract.  A tyrannical ruler had no legitimate claim on the obedience of his subjects.

That fear of a strong central government had arisen from these earlier experiences.  In the 1760s, the Americans had still seen themselves as Overseas Englishmen.  They still possessed the rights of Englishmen.  Those rights, in their understanding, included the right to be taxed by their own elected representative and the right be tried by a jury of their peers.  Both of these rights had seemed threatened by new taxes imposed by a British parliament elected only by British voters and by the Admiralty Courts appointed by the Crown and operating without juries.  As early as the Stamp Act Crisis, a handful of Americans had seen the measures as the leading edge of an effort to subjugate the colonists to absolute government.

In these circumstances, resistance offered the best path to preserving existing freedoms.  Colonial legislatures had denied the right of Parliament to impose the Stamp Act, then organized boycotts of British goods, and worked-up mobs to intimidate potential stamp distributors.  The organizers of this violent intimidation then went on to create the Sons of Liberty as a continuing resource.

The threat of superior military force added another dimension.  Until the French and Indian War (1756-1763), Anglo-Americans had defended themselves—and occasionally made offensive war—through their militias.  These were call-ups of all able-bodied and self-armed men in every Middlesex village and farm.  Anglo-Americans associated “standing armies” with the expansion of absolutist/tyrannical government like that in France.  Paranoia added another dimension.  After the defeat of the French, the Quartering Act had required the colonists to house British soldiers.  If the foreign danger had passed, why did Britain need to keep troops in America?  Did the Crown intend to impose its will on its American colonists?

In September 1768, two regiments of British infantry were ordered to Boston to support collection of the Townshend Duties.  The “Boston Massacre” (1770) cemented American hostility to regular troops.  The “Boston Tea Party” (1773) demonstrated the uses of violence.   Then came Concord and Lexington (1775).  Then came the Revolutionary War.  In the minds of many Americans, the ultimate defense against tyranny lay in the ability to shoot back.

“It Must Be a Peach of a Hand.”

In spite of the confident assertions on the right and the left, violence in America is full of puzzles and contradictions.  First, murder rates have fluctuated.  In 1980, America had a murder rate of 10.2 per 100,000 people.  The rate drifted downward for the next ten years, then began to fall sharply from about 1990.  By 2014 it had fallen to 4.5 murders per 100,000 people.[1]  Then, in 2015, the national murder rate increased to 10.8 percent.  However, the sharp increase can be attributed to selected cities (Baltimore, Houston, and especially Chicago).  There murder rates jumped to highs not seen in half a decade.  For example, by about 22 November 2015, Baltimore’s homicide tally hit 300 deaths.  This is 42 percent higher than the total for 2014 and we still had the holidays to go.  Most of the rise seems to have come since the rioting that followed the arresting-to-death of Freddy Gray.[2]  That’s scary because the last time the US had an increase like this came in 1971, at the dawn of several violent decades.[3]

One question to ask is if these changes reflected government action or some other influences.  A second question to ask is, if it did reflect government action, then did it reflect federal, state, or local action?  A third question to ask is, if it reflected some other influences, what were those influences?

Second, superficially at least, declining murder rates were tracked by declining support for the death penalty.  In 1994, fully 80 percent of Americans supported the death penalty for murder, while 16 percent opposed it and 4 percent were unsure.  By March 2015, 56 percent supported it.  By October 2016, 49 percent supported the death penalty.[4]  Similarly, the use of capital punishment continues to decline in the United States.  It fell from 98 in 1999 to 35 in 2014 to 20 in the first two-thirds of 2015.  Extrapolating from that latter figure, there would be 30 in all of 2015.  Even in Texas, the state most prone to impose the death sentence, no one has been sentenced to death so far in 2015.[5]

Third, just over half (55 percent) of Americans think that gun ownership can be restricted without violating the constitution (and the Second Amendment be Damned!) and slightly more (57 percent) want a ban on assault weapons.  Conversely, 43 percent of Americans believe that gun ownership cannot be restricted without violating the constitution and 25 percent oppose banning even assault weapons.  All the same, almost three-quarters (73 percent) of Americans support universal background checks.[6]

Fourth gun control is bad for gun control.  After the liberal characterization of the San Bernardino terrorist attack as a “mass shooting,” gun sales zoomed upward.  In December 2015, Americans bought 3.3 million guns.  All of these sales have been from licensed gun-dealers because the government background check system has been swamped.  Attorney General Loretta Lynch has asked for the hiring of 430 additional people just to process the background checks of Americans complying with the existing gun laws.[7]

In spite of the obvious violation of individual civil rights, most (80 percent) of Americans favor banning people on terrorist watch-lists from buying guns.  A small minority (17 percent) suspect that the ban would not be very effective.[8]  There are 25,000 to 40,000 Americans on terror watch-lists.  Of these people, 244 of them tried to buy firearms in 2015.[9]  That is, about one tenth of one percent sought to buy weapons.  People on terrorist watch lists buy guns at lower rates than do “ordinary” Americans.

Fifth, what is a “mass shooting?”  Orlando or Newtown, right?  Actually, the EffaBeeEye’s definition is a little more expansive: a single event in which four or more people get shot.[10]  So, criminals probably commit the bulk of the mass-shootings as a by-product of their business or personal lives.  By the EffaBeeEye’s standard, there have been 133 mass shootings in 2016.  Florida has suffered 15 (or 11.2 percent) of them.

Americans are sharply divided over how to interpret Omar Mateen’s massacre in the Pulse nightclub in Orlando, FL.  Most (60 percent) Democrats see it as an example of “domestic gun violence,” while most (79 percent) Republicans see it as an example of “Islamic terrorism.”[11]  The trouble is that the partisan filter on the vision of observers inhibits both understanding and civil discourse.  The further trouble is that both are right.

America is becoming a less violent place in comparison to the past, if not in comparison to Denmark.  Murder rates are generally trending downward; support for the death penalty is trending downward; and support for gun-control seems to be rising.  However, the politics of gun-control may well be hampering further progress.  It is common to blame the National Rifle Association for this problem.  It is common to use “terrorism” and “mass shootings” as labels that justify pushing ahead rapidly with strict gun-controls.  All that this does is to put the backs up on gun-owners.

Instead of shaming campaigns (satisfying though they are to many liberals), perhaps the best answer to a violent America is education campaigns.  Between 1964 and 2004, the number of Americans who smoked fell every year.  But in 2004, the decline bottomed out at 20.8 percent.  It stayed there through the end of 2007.[12]

Still, in these regards, America is a better, safer place to live than when I was a child.  Unless, of course, you are living in one of the broken cities where the War on Drugs spawns the “war for corners”; and where the “war for corners” spawns a confrontational style among young men with no better future.

This doesn’t end up exactly where I wanted to go when I began writing.  It just ends up where some random facts led me.

[1] “Noted,” The Week, 29 July 2016, p. 16.

[2] “Noted,” The Week, 27 November 2015, p. 16.

[3] “Noted,” The Week, 7 October 2016, p. 16.

[4] “Poll Watch,” The Week, 14 October 2016, p. 17.

[5] “Noted,” The Week, 25 September 2015, p. 16.

[6] “Poll Watch,” The Week, 5 August 2016, p. 17.

[7] “Noted,” The Week, 5 February 2016, p.8.

[8] “Poll Watch,” The Week, 1 July 2016, p.7

[9] “Noted,” The Week, 1 July 2016, p. 16.

[10] “Noted,” The Week, 24 June 2016, p. 20.  By this standard, the “Gunfight at the OK Corral” was a mass-shooting.  Especially if you were one of the Earp brothers.  If you were a Clanton or a McLaury, then it was a mass getting-shot.

[11] “Poll Watch,” The Week, 1 July 2016, p.7.

[12] “Noted,” The Week, 23 November 2007, p. 16.  Why did the decline stop?  What has it done since then?  Who are the remaining smokers?    I don’t know.  Perhaps they constitute a libertarian revolt against the intrusive nanny-state of liberal fascism.  Perhaps the people who rush to buy guns and ammo (as opposed to buying Guns and Ammo) are operating under the same star.

The Secret History of the Second Amendment II.

In 1963 and 1965, Senator Tom Dodd of Connecticut introduced bills to regulate the inter-state commerce in guns. They went nowhere. Then, after the death of President John F. Kennedy, both Martin Luther King and Robert Kennedy were slain by assassins. In 1968, Congress passed two laws that extended gun regulation. One law raised the age of legal purchase of a gun to 21.[1] The other regulated inter-state commerce in guns, outlawing the mail order sale of guns, and the buying of guns by felons, drug users, and people who had been involuntarily committed to a mental institution.[2] There matters rested for almost 20 years. They didn’t do a Hell of a lot of good: in 1981 a crazy person tried to kill President Ronald Reagan.

Between 1968 and 1986, some politically-active gun owners came to believe that the Bureau of Alcohol, Tobacco, and Firearms (BATF), which enforced federal gun-control laws, had often abused its authority. As a result, some of the restrictions of the 1968 Act were rolled-back by the Firearm Owners Protection Act (1986).[3] One provision of the act barred the federal government from running a registry of owners of non-NFA weapons (machine guns, sawn-off shotguns) sales. Another expanded and clarified the list of people who could not buy guns.

In 1990, Congress passed the Gun Free School Zone Act[4] which barred possession of a gun within 1,000 feet of a school. In cities, schools are everywhere. The law meant to provide grounds for arrest for people in big cities, although—the bureaucratic mind at work—it has also been applied to hunters in New Hampshire. However, in 1995 the Supreme Court overturned this law as unconstitutional. The Clinton Administration then passed a revised Act.

In 1993, Congress passed the Brady Bill.[5] This law required a background check on gun-buyers and a five day waiting period until a computerized system became available.[6] That system, the National Instant Criminal Background Check System, came on-line in 1998. It applied to “long guns” as well as hand guns, even though long guns account for only a small fraction of homicides.[7]

In 1994, in reaction to several mass shootings, Congress passed a ten-year ban on the manufacture and sale of “assault weapons.”[8] The law helped to bog down the discussion of what constituted an “assault weapon” by focusing on trivia rather than the key issue of the receiver, which controlled the rate of fire. There matters rested for almost 15 years.

In 2008 and 2010, in two separate cases, the Supreme Court held that the right to keep and bear arms is an individual right and that federal law trumps state law.[9] For the moment, at least, the quarrel between “individual right” and “collective right” advocates which opened in Kentucky 200 years before has been settled.

[1] See: https://en.wikipedia.org/wiki/Omnibus_Crime_Control_and_Safe_Streets_Act_of_1968 So, my folks giving me a gun on my 12th birthday was not illegal. Also, it occurred in 1966, before the law went into effect.

[2] https://en.wikipedia.org/wiki/Gun_Control_Act_of_1968 See, also: https://www.youtube.com/watch?v=a5IWK9sRYTs

[3] See: https://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act

[4] See: https://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

[5] https://en.wikipedia.org/wiki/Brady_Handgun_Violence_Prevention_Act

[6] See: https://www.youtube.com/watch?v=haeYj82a9f4

[7] In all likelihood, this drove gun owners wild. It probably made non-gun-owning liberals all warm and gooey.

[8] See: https://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban

[9] See: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller; andhttps://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago. In the McDonald case, the city of Chicago had refused to issue hand-gun permits since 1982, effectively disarming law-abiding citizens, rather than criminals.

The Secret History of the Second Amendment I.

In 17th Century England, exponents of “natural rights” held that humans had a “right to life,” so they had a “right to self-defense,” so they had a “right to keep and bear arms.” The English “Bill of Rights” (1689) forced on William and Mary[1] as part of the price for them gaining the throne “restored” this long-standing right after King James II had tried to take it.

No one in colonial British America doubted that the “right to keep and bear arms” was an individual right possessed by all free white men. They recognized that this right could lead to trouble on occasion,[2] but they never questioned it. The American Revolution extended this claim to a right of armed resistance against tyranny, but did not replace it. The prefatory clause in the Second Amendment (1791) about “A well-regulated militia” reflected this blurring of two issues. Post-war rebellions on the frontier[3] led to calls for the creation of a strong army, rather than to a questioning of the individual right to keep and bear arms.

Nineteenth Century America could be a violent place, so efforts to limit weapons arose. The efforts sparked the basic division between those who saw the right to keep and bear arms as an “individual” right and those who saw it as a “collective” right operated through the state militia. Only in the aftermath of the Civil War did this debate reach the Supreme Court of the United States. In 1875 the Supreme Court interpreted the Second Amendment to mean that the federal government could not regulate individual possession of arms, but that state governments were free to do so. The case in question arose out of efforts to disarm freedmen to make them vulnerable to attack by the Ku Klux Klan. The Court upheld this strategy.[4] In 1886, the Supreme Court re-affirmed that the federal government could not regulate arms, but that the states could regulate arms. The case in question arose out of efforts by companies to disarm working men to make them vulnerable to attack by gun-thugs hired by the employers to prevent unionization. The Supreme Court upheld this strategy.[5] There matters rested for 50 years.

In the late 19th and early 20th Centuries, various local efforts at gun control proliferated.[6] None of these challenged the individual right, but they sought—with uneven effect—to regulate its use. Then came the “Noble Experiment”: Prohibition.[7] Prohibition stimulated violence among black-market liquor dealers.[8] In 1934, in a reaction against the violence, Congress passed the National Firearms Act (NFA). It required the registration and control of private ownership of fully automatic machine guns and sawn-off shotguns. Congress had considered banning hand-guns as well, but decided that was a loser’s game: too many men owned hand-guns for perfectly legitimate purposes.[9] In 1939, the Supreme Court upheld this law.[10] There matters rested for 30 years.

[1] The king and queen, not the highly-regarded university in Virginia attended—ahem–by my god-son.

[2] For example, writs of eviction of frontier squatters often were not served by sheriffs “by reason of a gun.”

[3] Shay’s Rebellion, 1786-1787; the Whiskey Rebellion, 1791.

[4] https://en.wikipedia.org/wiki/United_States_v._Cruikshank

[5] https://en.wikipedia.org/wiki/Presser_v._Illinois

[6] See: https://www.youtube.com/watch?v=4NzK6NzctuE See: https://en.wikipedia.org/wiki/Sullivan_Act

[7] The “war on alcohol” preceded the “war on abortion” before Roe v. Wade, which preceded the “war on drugs.”

[8] See: https://www.youtube.com/watch?v=seewFj-zybQ; see: https://en.wikipedia.org/wiki/Saint_Valentine’s_Day_Massacre

[9] See: https://en.wikipedia.org/wiki/National_Firearms_Act

[10] See: https://en.wikipedia.org/wiki/United_States_v._Miller In 1968 the Supreme Court found that the law would require self-incrimination if a convicted felon failed to register a weapon he was not allowed to own. https://en.wikipedia.org/wiki/National_Firearms_Act Sigh. It was the Sixties. See: “Dirty Harry” (dir. Don Siegel, 1971), https://www.youtube.com/watch?v=kh62SjGdI0s

American Public Opinion.

So, regardless of what the politicians say, what do Americans think about some issues?

Back in September 2014, in the wake of the Islamic State’s over-running of much of Iraq, 53 percent of Americans approved of President Obama’s strategy for dealing with ISIS.[1] However, 64 percent of Republicans and 60 percent of Democrats approved. How did those higher numbers end up with an average of 53 percent? This suggests that there is a big group of Independents who don’t like the President’s policy.

In the November 2012 elections, 68 percent of Hispanic voters supported Democrats and 33 percent supported Republicans. In the November 2014 elections, 62 percent of Hispanic voters supported Democrats and 36 percent supported Republicans.

What do Hispanic voters care about? Not immigration reform. Only 16 percent of those polled in November 2014 ranked that as their primary concern. Health care came first for 24 percent. The economy in general came first for 49 percent.[2]

Two thirds of Americans are satisfied with the current US health-care system. [That’s a blurry response. Are they satisfied with the medical care they receive or are they satisfied with how the Affordable Care Act operates or both?] A whopping 74 percent of Democrats are satisfied, but even 60 percent of Republicans are satisfied.

The “war on guns” appears to be headed in the same direction as the “war on drugs.”[3] In 2000 only 29 percent of Americans favored preserving gun-rights over gun-control. By 2013, 45 percent favored gun-rights over gun-control; in 2015, 52 percent favored gun-rights over gun-control. This included 54 percent of African-Americans, up from 29 percent in 2012.

In the immediate aftermath of the “Charlie Hebdo” massacre in Paris, 63 percent of Americans believed that it was more important to preserve free speech than to not offend religious people. Only 19 percent thought it important to avoid offending other people.[4]

In early 2015, 49 percent of Americans identified as “pro-choice,” while 47 percent identified as “pro-life.” However, 84 percent favor liming abortion to the first three months of a pregnancy. This includes 69 percent of those who identify as “pro-choice.”[5]

This is a puzzler. Does it mean that a lot of pro-life people wouldn’t have an abortion themselves, but don’t really want to proscribe abortions for other women who find themselves in a jam? Does it mean that lots of pro-choice people think that abortion is a necessary evil, rather than a categorical right to be exercised at any time?

As of early 2015, 60 percent of Americans thought that middle-class people pay too much in taxes; 68 percent believe that the rich pay too little in taxes.[6]

A huge majority of Republicans—69 percent–agree with Rudy Giuliani that President Obama doesn’t love America. A huge majority of Democrats—85 percent—believe that does too love America.

One of several bizarre things here (aside from so many Republicans agreeing with that idiot Giuliani) is that apparently 15 percent of Democrats either believe that the President doesn’t love America or they’re not sure.

[1] “Poll Watch,” The Week,” 26 September 2014, p. 17.

[2] “Poll Watch,” The Week, 21 November 2014, p. 19.

[3] Timothy Williams, “Poll Finds That More Americans Back Gun Rights Than Stronger Controls,” NYT, 12 December 2014.

[4] “Poll Watch,” The Week 26 January 2015, p. 17.

[5] “Poll Watch,” The Week, 6 February 2015, p. 17.

[6] “Poll Watch,” The Week, 6 March 2015, p. 17.