Sunday, January 16, 2011

On Gun Control, Dictators, and the Second Amendment

After all the sorrow for the tragedy in Tucson we hear commentaries from all sides on the issue of gun control.  While my Canadian friends try to hide their air of moral superiority (deserved or not), I find my Argentine husband’s views worth considering.

Given that Roberto has lived almost one-third of his life under dictatorships, including four coups d’état, he’s got quite a different take.  While was lamenting the relatively availability to U.S. citizens various weapons of serious destruction, he came back with this:

“If it had been the same here in Argentina, perhaps things would have turned out differently.  In a country where many of the citizens have powerful weapons, it’s much more difficult to install dictatorships.”

Something to think about.

Also worth reading is this commentary by Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms:  The Common Law Tradition, which appeared in the Hastings Constitutional Law Quarterly.  Here is part of her 1983 essay, which highlights the need to write clear, unambiguous sentences. (Are the Tunisians listening?)

In a report on the legal basis for firearms controls, a committee of the American Bar Association observed:

There is probably less agreement, more misinformation, and less understanding of the right of citizens to keep and bear arms than on any other current controversial constitutional issue. The crux of the controversy is the construction of the Second Amendment to the Constitution, which 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." 

Few would disagree that the crux of this controversy is the construction of the Second Amendment, but, as those writing on the subject have demonstrated, that single sentence is capable of an extraordinary number of interpretations.  The main source of confusion has been the meaning and purpose of the initial clause. Was it a qualifying or an amplifying clause? That is, was the right to arms guaranteed only to members of "a well-regulated militia" or was the militia merely the most pressing reason for maintenance of an armed community? The meaning of "militia" itself is by no means clear. It has been argued that only a small, highly trained citizen army was intended, and, alternatively, that all able-bodied men constituted the militia.  Finally, emphasis on the militia has been proffered as evidence that the right to arms was only a "collective right" to defend the state, not an individual right to defend oneself.  Our pressing need to understand the Second Amendment has served to define areas of disagreement but has brought us no closer to a consensus on its original meaning.

So what next?  

P.S.  If anyone would like to tell me how to change the color and spacing errors that inserted themseves against my will and repeated attempts to change them, I'd love the steps.  (See where the text suddenly turns to a brown color and becomes double spaced?)

1 comment:

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