Hawks, handsaws, assault rifles

>> Thursday, January 31, 2013

It's hard not to love Goblinbooks.  You should, indeed, be loving Goblinbooks right now, and if you aren't, you should go over there and love on it and then get back to me.

I bring it up because I got a good laugh out of a recent entry, "A Message From A Woman Defending Her Babies With An AR-15", which mocks a popular NRA and Republican trope, the female fantasy figure who is endangered and can only save herself with a paramilitary weapon with a high-capacity magazine.  To be more specific, Paul Bibeau, the author of Goblinbooks, is mocking the recent Congressional testimony of Gayle Trotter earlier this week:
"An assault weapon in the hands of a young woman defending her babies at home becomes a defense weapon," she said, alleging that the fearsome appearance of the gun grants the wielder a "peace of mind," and an inherent advantage over criminals.

I think this is the part where somebody is supposed to say that "assault weapon" is a meaningless term that describes "cosmetic" changes to or features of a firearm, but since Ms. Trotter is a representative of a conservative nonprofit who was appearing before the Senate to advocate on behalf of firearms owners, I don't expect anybody will.  But that isn't actually the point I was going to post about.

No, actually, what "A Message From A Woman Defending Her Babies With An AR-15" reminded me of was something else I'd been thinking about lately re: just how fucked up American culture and law are vis-à-vis guns generally.  See, there's a really catastrophic irony concerning the legal and cultural obsession with AR-15s and assault rifles generally, and that irony would be:
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.

That's the Second Amendment To The United States Constitution, of course.  You probably recognized that if you're reading this blog (though Canadian regulars have less reason to).  Anyway, you probably also realize that this single sentence is the whole root of all the trouble with guns in this country, and I don't mean that because it involves firearms, but because the whole debate over whether firearms can be regulated at all goes back to that little sliver of text and how you read it.

I read it as a right of "the people" as opposed to a right of "persons", two terms that tended to be used as vague and undefined terms-of-art by the Founders (they didn't always use the terms consistently and often seemed to have a "well we know what we're talking about" approach to the definitions), and as a right of the people (or People) specifically concerning States as entities.  I'll point you back to a pretty brilliant summary of the Amendment's historical context by my friend David if you want deeper understanding on that aspect, and merely add that I think you also have to read the Second Amendment in the legal context of Article I, section 8 of the Constitution (and especially paragraphs 11-16 concerning war powers) and Article II, section 2 (limiting Executive power, especially paragraph 1).

And then I'll be a parsimonious bastard and leave it at that, because I'm not all that interested right now in rehashing that legal and historical context (especially uninterested because I think District Of Columbia v. Heller basically renders the historical and legal context of the Second Amendment an interesting academic discussion that isn't hugely vital or relevant).  No, see, the only reason for even going through it all as much as I have is that I have a fairly basic (and I don't even think original) observation I'd like to get off my chest that assumes you know all this contextual stuff except I can't fairly assume you do already know all this context, but I don't really want to get swept away in the context.  So I'm hoping we've hit the high points and if you're hungry for more I've given you the links you need.

So here's the actual observation: it's possible that the most absurd thing about the debate over "assault rifles" or whatever you'd like to call them is that there's probably a much stronger Second Amendment rationale for permitting ownership of them than there is for handguns and hunting rifles, and that rationale is more-or-less based on the entire reason some people want them banned and the same reason gun advocates get hot and bothered about how these weapons are labeled.

I mean, here's the historical context of the AR-15: it's a civilian-grade version of the weapon ArmaLite created under government contract and that entered American service as the M16.  Which isn't something gun advocates like to talk about, because what's happened in the intervening decades is that Colt (which obtained the design from ArmaLite) and companies like Bushmaster that manufacture AR-15 clones have successfully marketed the weapon to the public as something that can be used for target shooting or even hunting.  Which, to be perfectly fair, are things you can do with an AR-15 even though, you know, it's a modified version of a weapon that was designed for the original purpose of providing American teenagers with a reliable, convenient, easy-to-use method of shooting Asian teenagers.

Well, it was.  Sorry.

And that's okay, I guess, insofar as it goes.  I'm not really trying to bash the AR-15--in fact, this is part of the irony of the whole thing.  Gun advocates want you to ignore the AR-15s history as a military weapon rejiggered and mass-marketed to the general public and focus on what it was re-marketed as (namely, Fun!) and gun-control advocates want to point out (not incorrectly) that the modifications to the original M16 design that make the family of weapons salable in the civilian market and the adoption of the weapon for sporting purposes doesn't wholly bury the original and possibly best use of the tool, which would be, you know, killing people (and not necessarily Asians).  All of which, as I tried to say, is ironic.  You see why, right?

Okay, maybe it's just me.  It's ironic that this is where the debate over the AR-15 is because if you go back to the Second Amendment (which is supposed to permit ownership of whatever arms are ownable) and read it in its original context, it would seem that a weapon suitable for militias to use for national defense--i.e. a military-style weapon adapted for civilian ownership and use--is exactly what the Second Amendment contemplates.  Whereas a weapon that's designed for self defense or for sport isn't really within the four corners of the text at all.  Whatever else you can do with an AR-15 or one of its many, many clones and knockoffs, it seems reasonably adequate as a paramilitary weapon to be purchased by or issued to young men (and/or of course, in the Twenty-First Century, women) of suitable age and without conscientious objection, maintained by them under penalty, with which they shall drill in the town square as proscribed by state law or regulation.

Unlike, say, a pistol you might have handy in case there's an intruder, or a bolt-action hunting rifle or shotgun you were planning to use for game in-season.  If you take a four-corners reading of the Second Amendment, I think you can infringe the Hell out of that.

And all this, to be clear, is really fucked-up.

Because I'm not really saying, or trying to say, that we all ought to have AR-15s (though that would make gun manufacturers pretty giddy) and that there ought to be an outright ban on hunting rifles (which would make the same gun manufacturers suddenly sad).  What I'm getting at, or trying to get at, is that the whole "conversation" or "fight" or whatever-you-want-to-call-it over gun ownership is basically borked (in the vernacular sense) outright from the start.  People who don't want to call a thing a military weapon (because arguing that people should own military gear designed to kill lots of other people really does sound kinda nuts, when you get right down to it) are arguing with people who do want to call it a military weapon (because it's a thing pretty much designed to kill lots of people) over whether a legal provision permitting the ownership of military weapons (because we might need to kill foreign invaders) allows a military weapon (supra) to be banned.  Basically.  I mean, I guess you can quibble over whether the "civilian" AR-15 is technically a military weapon, etc., but do you see the real problem here?  It isn't that we don't know what we're talking about--something, by the way, I think gun advocates and gun-control advocates tend to be equally guilty of--it's that we're all fucking crazy to start with.

No, seriously.  "Does a Constitutional provision that (regardless of how it's currently interpreted) expressly allows the people to keep and bear militia weapons allow militia weapons to be banned even if the people who don't want them banned don't want them to be called militia weapons?"  I think the answer to that question is probably "Prozac".  I'll be damned, anyway, if the answer is that you can unconstitutionally ban something because the people who don't want it banned are under the misapprehension it's a squirrel rifle, or you can't ban it because squirrel rifles are necessary to a free republic, or if I even can even get my head entirely around all this anymore.

Anyway, I did have to get that off my chest.  Thanks for coming by and reading.


Anonymous,  Thursday, January 31, 2013 at 12:49:00 PM EST  

There's actually a short paragraph near the end of Heller -- don't have time to find the exact language right now -- where Scalia actually admits this exact point. Which is one of the reasons I kind of hate that opinion. On the one hand, he says he's aware of the irony of saying that handguns are closer to the core of the right than automatic/semi-automatic rifles. On the other hand, he still does it. grumblegrumblegrumble

Anonymous,  Thursday, January 31, 2013 at 12:51:00 PM EST  

Wait -- I found it: "It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."

Eric Thursday, January 31, 2013 at 2:04:00 PM EST  

I'd forgotten all about that.

I feel pretty comfortable saying, whatever else Heller may be, it's definitely the sound of whatever was left of Scalia's intellectual credibility going through the shredder. I started to leave it at that, with ominous ellipses, but there's actually a meaningful point that follows from the observation: another reason I consider gun control a moribund issue right now is that even if Congress finds the political will to enact something, and even if the President commits the political capital to sign it, I don't think Scalia's "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," can really be taken as meaning much of anything; if he can rationalize a personal right to self-defense by setting aside his own stated principles of Constitutional construction in favor of commentaries and old British common law, creating a right that is nowhere mentioned in the Constitution out of whole cloth, he can do anything. And probably will. Which is expressed bitterly but not wholly critically--after all, if I'm okay with a right-of-privacy being invented out of the Fourteenth Amendment, surely it's only fair turnaround to invent a personal right to own firearms out of the Second. It just stings a little when you're on the receiving end, I admit.

Anonymous,  Thursday, January 31, 2013 at 2:54:00 PM EST  

Well, the circuit courts, at least, have swarmed all over that footnote to find all kind of gun control lawful. And so far the Court hasn't granted cert on any of those cases. That's something.

And... you know... maybe Scalia will have a heart attack! Not a fatal one -- just something to make him think he ought to retire, enjoy the finer things in life, play some golf, dandle his grandchildren.

OR maybe he'll get a visit from the ghost of William Rehnquist one evening. "It is a PONDEROUS CHAIN!!!"


Eric Thursday, January 31, 2013 at 3:35:00 PM EST  

I like the idea of Rehnquist rattling those chains he forged in life. Y'know, it reminds me, I was talking politics on the phone with my Dad last weekend and I happened to mention Rehnquist, and my Dad interrupted me to say Rehnquist was burning in Hell. Twice. I don't think my Dad even believes in Hell. But he believes William Rehnquist is in it.

I also have an old friend and former colleague who was very, very proud of the time he pointedly refused to shake Rehnquist's hand when the Chief Justice was visiting his law school to deliver a speech.

But I digress. William Rehnquist visits Justice Scalia one Christmas Eve and shakes his chains at Antonin, informs him he will be visited by three spirits before dawn. The first shows Scalia his past and the second his present, but when the third appears, the Justice stops it at his bedside and says, "What makes you think I accept the fallacious and untenable position that this is a living, breathing ha'nting," and goes soundly to sleep.

The forlorn spirit next tries its luck at the Thomas household, but all it gets for its troubles is an angry, weird phone call from Ginni Thomas on Boxing Day, requesting an apology or somesuch.

- CGL - Friday, February 1, 2013 at 2:43:00 AM EST  

... And the UK weighs in (day before yesterday, now ... I'm coming to the comment stream a bit late):


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