Monthly Archives: January 2019

What does “the right to keep and bear arms” mean?

New York City has a very tough, one-of-a-kind handgun law.  Handgun owners have to keep their guns at home; they can only transport them out of the home unloaded and in special containers, and they’re not allowed to leave the city with their handguns at all.  The Supreme Court has just agreed to hear a case challenging this law as being unconstitutional, a violation of three things: the interstate commerce clause (contained in Article I, Section 8), the right to travel from state to state (contained in Article IV, which is about the obligations of states to each other–and city governments are subdivisions of state governments, constitutionally speaking), and, most significantly for the precedents the Court may set with this case, the Second Amendment, which guarantees “the right to keep and bear arms.”

The original context of the Second Amendment needs to be remembered.  It was part of the Bill of Rights that Congress passed and the states ratified early on in the George Washington presidency when the Constitution and the republic that it created were still brand new.  At the time, these first ten amendments were all about reassuring the states that the federal government was not going to get too powerful.  Freedom of speech, freedom of religion, freedom of the press, freedom from unwarranted searches and excessive bails were all rights that the federal government was promising not to violate.  Only in the 20th century, after the ratification of the Fourteenth Amendment in 1868, did the federal courts start treating the provisions of the Bill of Rights as rules that the federal government could enforce against the states.  This is important:  no aspect of civil liberties or civil rights in the United States can ever be adequately studied or understood without a strong comprehension of federalism, the power dynamic between national power and state power.

Now, where does the Second Amendment fit in?  First, let’s get its precise, unabridged words.

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.

Exactly what did the authors of this amendment mean by it when they wrote it?  There actually isn’t much record of that, or of how it was talked about in the state legislatures when it went around for ratification along with the other amendments.  However, one principle that is fairly well understood is that at the time it was passed, the national army was not considered big enough to provide for national defense without the help of state-level militias, which were composed of private individuals, most of whom were farmers.  And, while it isn’t true that passage of the amendment was all about protecting slavery, it is certainly true that slaveholders in the South relied on guns to deter enslaved persons from fleeing, and there was always a force of armed whites on horseback–who were not slaveholders themselves (most southern whites weren’t)–serving as the “slave patrols.”

Today, there are two ways of interpreting the Second Amendment:

  1. That it prohibits the federal government from stopping states from forming armed militias to provide for the common defense beyond the capabilities of the national, professionalized army.
  2. That it prohibits the federal government, and now (thanks to the Fourteenth Amendment) any state or local government, from restricting private gun ownership at all–including bans on private ownership of high-caliber military weapons.

The issue is fiercely partisan.  When there is a mass shooting, Democrats consistently call for stricter gun laws.  Republicans, meanwhile, mostly aligned with the National Rifle Association (NRA), fight tooth-and-nail against any gun restrictions, claiming that any such restriction violates the Second Amendment, and also claiming that any gun restriction is a step toward a total ban on any private ownership of any gun.  The NRA uses such slogans as “If guns are outlawed, only outlaws will have guns” and “Guns don’t kill people; people kill people.”

The fact that the Republican appointees on the Supreme Court outnumber the Democratic appointees by 5 to 4 does not automatically mean that there will be a pro-NRA outcome.  It was, after all, Bush appointee John Roberts who cast the deciding vote in favor of Obamacare back in 2012.  However, the Republican appointee who was most likely to vote with the liberals was Anthony Kennedy, and he has just retired and been replaced by the more conservative Brett Kavanaugh.  Again, this doesn’t mean anything definitive, but it’s very possible that the ruling may go beyond New York’s law and make it a lot harder for states to restrict gun ownership.

New York Times article, January 22, 2019

Documents of the case on SCOTUS Blog

The Partial Government Shutdown: Some Basics

Some 800,000 federal employees are either on furlough or, in the case of “essential” workers, required to work without pay.  They will be paid retroactively when the government re-opens, but that only applies to employees.  There are also an untold number of persons who perform services for the federal government as self-employed contractors or as employees of agencies that serve the government under contract; those people are just out of luck, when it comes to getting paid by the government for the shutdown period.  All this is happening because it takes a spending bill passed by Congress and signed by the president for the government to function, and no such bill has been passed since the last appropriations expired at the end of 2018.

Have such shutdowns happened before?  Yes, but this one is different.  First off, this one is now record-breaking for how long it’s gone on.  But the even bigger difference is, usually there are nonstop negotiations going on, with offers and counteroffers flying in both directions, and the sense that the Democrats and the Republicans are getting closer and closer to an agreement.  No such thing is happening now.

Basic points:  Trump wants $5.7 billion for a border wall (you know, the one he was promising to build and “have Mexico pay for it”).  The Democrats, who control the House of Representatives, won’t pass a bill with more than $1.3 billion for border security; Trump says he won’t sign any bill that doesn’t include the amount he wants for the wall; and the Republican leadership in the Senate won’t bring a bill up for a vote that Trump won’t sign.

One would think this could be worked out, for the following reasons:

  1. A year ago, the Democrats were willing to give Trump half the amount he’s demanding for border security in exchange for a provision rescuing the DACA act (Deferred Action for Childhood Arrivals, in other words, letting the “Dreamers,” the foreign-born children of undocumented immigrants, stay).  Now, they are making no such offer.
  2. Late in the last session, the Republican-majority Senate passed a bill that would keep the government open while negotiations continue.  The Democratic majority in the House is all in favor of that bill.  However, Trump won’t sign it, and because Trump won’t sign it, Mitch McConnell, the Senate Majority Leader, won’t bring it up for a vote in the Senate.  (It’s a new session, so it would have to be passed by both chambers in this session.)
  3. About Trump choosing a government shutdown rather than signing that bill:  He was all ready to let the whole thing go until conservative commentators including Ann Coulter prodded him by saying he’d look weak if he gave in.

So, the Democrats in the House, the Republicans in the Senate, and Trump are all digging in their heels with positions more adamant than those which they had been taking at earlier times.

What the shutdown amounts to is a government-induced localized depression.  It needs to be understood that every time the country suffers an economic depression or a serious recession, people who are unemployed and unable to pay their bills and support their children adequately suffer personal shame, even if it’s clearly not their fault.  This always results in some suicides.  In fact, during the recession of 2008 and after, there were a few instances where the man who was committing suicide killed his whole family as well, thinking it was better to end their lives than to abandon them without him to support them.  My point here is that economic depressions are serious, and truly unlimited in the amount of damage and tragedy that they cause.  While the government is limited in its ability to bring the country out of a depression, one would hope, at minimum, that the government would not purposefully cause one.  For the hundreds of thousands of government employees and contractors who are without paychecks, especially if this continues as long as people fear it will, it amounts to a government-induced depression for that sector of the work force.

Discussion of the shutdown on NPR, January 13, 2019