Why No Hue and Cry About SCOTUS and the "Right to Bear Arms"?
Dave Muskera, M.A.
June 27, 2008
OK, let me get this out of the way right up front. I´m not a Constitutional scholar, a linguist nor an expert on the Supreme Court of the United States (SCOTUS). In these things, I share a great deal in common with the average guy and gal in the street. But, like many Americans, I can spot a double standard coming down the pike from a mile off. I´m talking about the recent SCOTUS decision regarding the Second Amendment.
I´m pretty sure I´m not alone in wondering where´o-where is all the bad-mouth complaining about activist judges and "legislating" from the bench that often attends Court decisions? Hey…didn´t they notice? SCOTUS just made a precedent-setting decision regarding the Second Amendment and the long standing debate over the "right to bear arms". Don´t you think it odd that we haven´t heard the jackals crying out and denouncing SCOTUS and the individual Justices for their "overbearing" stance and having the temerity to make such a pronouncement and the gall to "legislate from the bench"?
Well, as I´ve written in other articles, the groups who rattle and bang about the will-of-the-people and the dastardly behavior of the Judicial branch are either terminally ignorant or just willfully inciting (to promote their own agenda) the lesser informed public (Please feel free to read "lesser informed public" as referring to lazy brained-fried FOX News watchers). The facts are: no matter if you agree with the Justices decision about "guns" or not - they were doing the job they are suppose to do under the form of government set up by those infamous "founding fathers" of ours. That Job, Mr. and Ms. US citizen, is to "interpret" the Constitution! Plain and simple. Hummmm - I wonder why ministers are never accused of being "activist preachers" when they interpret St. Paul or give us their take on the Gospel of John? If they get carried away, the most that might be said is that they have "deeply held beliefs" and we all back off and leave them be…Oh well, that´s a topic for another article sometime down the road.
However, the anti-judicial bunches act as if the Constitution is perfectly clear and that any idiot should know exactly what ever sentence in it means….not withstanding that the language, cultural connotations and definitions of words used are well over 200 years old. If they had their way, we´d just do away with the courts altogether. But OK, let´s take a look at what the Justices were basically dealing with. The Second Amendment is pretty short. It goes like this: "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."
So going back to what I said about me not being a linguist nor a Mr. Perfect Grammar: seems to me by today´s standards, this is a pretty sloppy sentence. It´s almost like it was the product of a committee discussion and suffered by being the result of some sort of language merging or compromise. Like it´s really two separate sentences, poorly connected. It´s anything but clear in its meaning – as are, for example, so many Bible passages (and don´t we all know just how easy it is to interpret the Bible). This one singular sentence - composed of what at first appears to be several dependent clauses (which turn out not to be) really makes no clear direct sense. It´s poorly constructed and, like I´ve already suggested, by today´s rules it´s grammatically incorrect (I think). Maybe Philadelphia folks in 1760s wrote this way but hey, this is 2008.
In any case, my take on it (and everyone else has their own take as well) goes like this: The Second Amendment sentence, as written into history, begins with a statement about a "….well regulated Militia" - so it seems to me that is what the entire sentence is about - then points out its necessity and then goes on to state it is a "right of the people". By the time it gets to these last few words - it seems pretty obvious the point of the sentence was about the Militia and not a discussion of "individual" rights and certainly not an endorsement of the right to keep an AK-47 by the front door - thereby accidentally blowing away the pizza delivery boy because the dogs barking made you nervous. Why would you write a single sentence that had two separate and quite distinct subjects – (the) militia and (admittedly interpreted – "individual" rights - in this otherwise convoluted compound sentence. In the Amendment, seems to me, the "militia" is being described as "a right of the people (as a group) to bear arms and protect themselves…a right that should not be infringed.
Let me suggest a re-write. If the Amendment had been written like this, there would be a lot less debate: "A well regulated Militia, being a right of the people to bear arms and necessary to the security of a free State, shall not be infringed". Of course, I may be wrong about all this and, you guessed it, I did not get a vote on the SOCTUS.
So, the only way the #2 Amendment can be handled today and this many years from the time it was written - is to "interpret" it. It´s all that´s left. To just plain out-and-out guess what the "framers" meant. And when a Justice uses his or her legal reasoning to "guess" (calling a spade a spade) what the Second Amendment might mean, they - of understandable necessity - bring into play their own political philosophy and their own belief system….there just ain´t no way to be objective in this process. Why else do you suppose there is so much fighting over the appointment of judges? Why all the hue and cry about a potential Justice´s political leanings? Conservative? Liberal? Middle of the Roader? It´s because we all know that a Court - heavily weighted in one direction or another - tends to make decisions that generally support the leaned in direction. And everybody wants things to go their own way.
This current decision by SCOTUS….is no doubt the product of a certain brand of reasoning. So what? There it stands. If I disagree with it….I just disagree. It´s not that the Judges were being "activists" or overstepping their boundaries. As I´ve already written, the vapid groups that bitch and moan about the Judiciary, only become vocal when they disagree with a particular Court or judge´s decision. The recent California Supreme Court´s decision is a good example of what I´m talking about. God knows how many death threats that Court has received for its "imperious" pronouncement about gay marriage. A chorus of right-wing howling arose immediately after - How dare they trample on the "will of the people" was bellowed at the top of a lot of lungs. By the way, please notice that the WOTP changes and shifts more frequently than a compass caught in an electrical storm. Lets face it, the will of the people is a fickle, unreliable, convoluted, know-too-little uppity phenomena. But, even without consulting a historian or Constitutional scholar, let´s remember that the direct vote of the people was never intended to be used to determine the rights of minorities. Ever hear of the Bill of Rights? If not, then go study up.
I know I´ve meandered a bit on this but the point I´d like to leave you with is this: It seems patently transparent that it is only when Justices or Courts make unpopular decisions (at least according to some groups) that they get blasted by the rabble-right with the shouted from the roof tops epitaph: "Activists" judge! They´ve ignored the will of the people! Let´s lynch ´em!"
Sad to say, but in years gone by, it was the WOTP that sometimes lead to a rope and a tree. Do we really want to repeat the mistakes of history? Or can we just quit the claptrap and let the Courts do their jobs - whether we agree or not?
I´m pretty sure I´m not alone in wondering where´o-where is all the bad-mouth complaining about activist judges and "legislating" from the bench that often attends Court decisions? Hey…didn´t they notice? SCOTUS just made a precedent-setting decision regarding the Second Amendment and the long standing debate over the "right to bear arms". Don´t you think it odd that we haven´t heard the jackals crying out and denouncing SCOTUS and the individual Justices for their "overbearing" stance and having the temerity to make such a pronouncement and the gall to "legislate from the bench"?
Well, as I´ve written in other articles, the groups who rattle and bang about the will-of-the-people and the dastardly behavior of the Judicial branch are either terminally ignorant or just willfully inciting (to promote their own agenda) the lesser informed public (Please feel free to read "lesser informed public" as referring to lazy brained-fried FOX News watchers). The facts are: no matter if you agree with the Justices decision about "guns" or not - they were doing the job they are suppose to do under the form of government set up by those infamous "founding fathers" of ours. That Job, Mr. and Ms. US citizen, is to "interpret" the Constitution! Plain and simple. Hummmm - I wonder why ministers are never accused of being "activist preachers" when they interpret St. Paul or give us their take on the Gospel of John? If they get carried away, the most that might be said is that they have "deeply held beliefs" and we all back off and leave them be…Oh well, that´s a topic for another article sometime down the road.
However, the anti-judicial bunches act as if the Constitution is perfectly clear and that any idiot should know exactly what ever sentence in it means….not withstanding that the language, cultural connotations and definitions of words used are well over 200 years old. If they had their way, we´d just do away with the courts altogether. But OK, let´s take a look at what the Justices were basically dealing with. The Second Amendment is pretty short. It goes like this: "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."
So going back to what I said about me not being a linguist nor a Mr. Perfect Grammar: seems to me by today´s standards, this is a pretty sloppy sentence. It´s almost like it was the product of a committee discussion and suffered by being the result of some sort of language merging or compromise. Like it´s really two separate sentences, poorly connected. It´s anything but clear in its meaning – as are, for example, so many Bible passages (and don´t we all know just how easy it is to interpret the Bible). This one singular sentence - composed of what at first appears to be several dependent clauses (which turn out not to be) really makes no clear direct sense. It´s poorly constructed and, like I´ve already suggested, by today´s rules it´s grammatically incorrect (I think). Maybe Philadelphia folks in 1760s wrote this way but hey, this is 2008.
In any case, my take on it (and everyone else has their own take as well) goes like this: The Second Amendment sentence, as written into history, begins with a statement about a "….well regulated Militia" - so it seems to me that is what the entire sentence is about - then points out its necessity and then goes on to state it is a "right of the people". By the time it gets to these last few words - it seems pretty obvious the point of the sentence was about the Militia and not a discussion of "individual" rights and certainly not an endorsement of the right to keep an AK-47 by the front door - thereby accidentally blowing away the pizza delivery boy because the dogs barking made you nervous. Why would you write a single sentence that had two separate and quite distinct subjects – (the) militia and (admittedly interpreted – "individual" rights - in this otherwise convoluted compound sentence. In the Amendment, seems to me, the "militia" is being described as "a right of the people (as a group) to bear arms and protect themselves…a right that should not be infringed.
Let me suggest a re-write. If the Amendment had been written like this, there would be a lot less debate: "A well regulated Militia, being a right of the people to bear arms and necessary to the security of a free State, shall not be infringed". Of course, I may be wrong about all this and, you guessed it, I did not get a vote on the SOCTUS.
So, the only way the #2 Amendment can be handled today and this many years from the time it was written - is to "interpret" it. It´s all that´s left. To just plain out-and-out guess what the "framers" meant. And when a Justice uses his or her legal reasoning to "guess" (calling a spade a spade) what the Second Amendment might mean, they - of understandable necessity - bring into play their own political philosophy and their own belief system….there just ain´t no way to be objective in this process. Why else do you suppose there is so much fighting over the appointment of judges? Why all the hue and cry about a potential Justice´s political leanings? Conservative? Liberal? Middle of the Roader? It´s because we all know that a Court - heavily weighted in one direction or another - tends to make decisions that generally support the leaned in direction. And everybody wants things to go their own way.
This current decision by SCOTUS….is no doubt the product of a certain brand of reasoning. So what? There it stands. If I disagree with it….I just disagree. It´s not that the Judges were being "activists" or overstepping their boundaries. As I´ve already written, the vapid groups that bitch and moan about the Judiciary, only become vocal when they disagree with a particular Court or judge´s decision. The recent California Supreme Court´s decision is a good example of what I´m talking about. God knows how many death threats that Court has received for its "imperious" pronouncement about gay marriage. A chorus of right-wing howling arose immediately after - How dare they trample on the "will of the people" was bellowed at the top of a lot of lungs. By the way, please notice that the WOTP changes and shifts more frequently than a compass caught in an electrical storm. Lets face it, the will of the people is a fickle, unreliable, convoluted, know-too-little uppity phenomena. But, even without consulting a historian or Constitutional scholar, let´s remember that the direct vote of the people was never intended to be used to determine the rights of minorities. Ever hear of the Bill of Rights? If not, then go study up.
I know I´ve meandered a bit on this but the point I´d like to leave you with is this: It seems patently transparent that it is only when Justices or Courts make unpopular decisions (at least according to some groups) that they get blasted by the rabble-right with the shouted from the roof tops epitaph: "Activists" judge! They´ve ignored the will of the people! Let´s lynch ´em!"
Sad to say, but in years gone by, it was the WOTP that sometimes lead to a rope and a tree. Do we really want to repeat the mistakes of history? Or can we just quit the claptrap and let the Courts do their jobs - whether we agree or not?
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