The Only Thing to Fear
By Karen MacNutt,
"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty."
By the time this is printed, the United States Supreme Court will be determining if the city of Washington, DC, has the right to ban handguns. It is the first time since 1939 that the Court will consider the scope of the Second Amendment to the United States Constitution. The City of Washington prevents most people from owning handguns in their own homes. Even those who were allowed handguns, are required to store them in such a way as to make it impossible to use the gun for self-defense.
The Supreme Court usually avoids ruling on the constitutionality of laws. When the DC Court of Appeals struck down the city's gun ban, it caused a further division in the lower federal courts on the meaning of the Second Amendment. The well-written Appeals Court decision accurately outlined the arguments on both sides before ruling the Second Amendment was an individual right.
It is important to understand that the DC case is not about carrying a gun on the street. It is not about licensing, or other restrictions. It is about having a handgun in your home for self-defense. It is not about what states can do. It is only about whether or not a federal instrumentality can prohibit a law-abiding citizen from owning a handgun in his or her own home.
The issue, as stated by the Court, is whether or not certain sections of the DC Code "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."
The question involves, "Second Amendment rights of individuals" who wish to keep . . . "firearms for private use in their homes." The Court is not considering the "militia's"rights or the right to keep a gun for use in the militia. It is not considering the rationale it used in the 1939 Miller case. In Miller, the Court upheld a federal law restricting sawed-off shotguns based upon a finding that a sawed-off shotgun was not protected because it was not suitable for military use.
The question is, do individuals have any rights under the Second Amendment? Those in support of gun prohibition say, "No." Those who believe people should be able to have guns say, "Yes."
The legal arguments supporting the DC gun ban are filled with the same strained statistical arguments and appeals to fear that fill the anti-gun playbook. Crime, according to them, is caused by guns.
The proponents of the ban have not suggested that the DC police give up their guns. It is not, in reality, the guns they fear. It is the thought of guns in the hands of common people which causes them distress. They fear the people.
The purpose of the Bill of Rights is to restrict the power of government. Thousands of prosecutions have ended when evidence, collected in violation of the 4th and 5th Amendment right to be free from unreasonable searches and seizures, was excluded from use in court. People accused of crimes have had the charges dismissed because their so called "confession" was not freely made or because the government held them in jail too long before bringing them to court. In many of these instances, but not in all, people who committed crimes were allowed to walk free. The Courts saw there was a greater issue than mere enforcement of the criminal law. The higher good was preventing government officials from abusing power. Stripping citizens of civil rights would make law enforcement easier, but it would destroy the most valued possession we have, the right to live in a free society.
Of all the arguments that could be made against the Second Amendment, the claim that the risk of violence justifies the abrogation of civil rights is both the most shallow and most dangerous of arguments.
In 1939, when it last ruled on the Second Amendment, the Supreme Court was still working on its definition of the First Amendment. The First Amendment was by no means the clear statement of human rights we now believe it to be. The same appeal to fear was used to justify laws restricting freedom of assembly and press. Laws broadly defining sedition were seen as essential to maintain the social order. The last half of the 19th century and beginning of the 20th saw the rise of anarchists, Bolsheviks, Communists, and radical unionism.
In 1886, a single strike of 350,000 workers closed 1,200 businesses. Union-related violence swept the country. In Chicago, a bomb was thrown into the ranks of police officers controlling a demonstration of union workers. It wounded 60 officers and touched off the massive Haymarket Riots. In 1894, the Pullman Strike overwhelmed the railroad industry with almost 130,000 workmen going on strike. As replacement workers were brought in, the crowds got ugly. About 12,000 troops were called upon to restore order. In 1919, the Boston Police went on strike sending the city into convulsions of lawlessness that were only brought to an end when saber-swinging troops of the 110th horse cavalry charged into the mob at Scolley Square. More than 8,000 troops moved into Boston under a declaration of martial law. For over 100 days armed soldiers backed up by machine gun emplacements, kept order at major intersections. Local governments were worried. It was, after all, the words of Karl Marx which brought Communist rule to Russia in 1917.
In response to the riots, laws were passed to punish what was termed "seditious" speech. Such speech was said to incite violence and crime. Laws restricting the speech of some people were justified because "the plain purpose of their propaganda was to excite, . . . disaffection, sedition, riots, and as they hoped, revolution, in this country. . ."
People such as Justice Oliver Wendell Holmes, however, thought such laws should be narrowly interpreted. He was often in the minority on the Court.
"Persecution for the expression of opinions seems to me perfectly logical," Holmes explained, "if you have no doubt of your premises or your power and want a certain result with all your heart you naturally pass a law and sweep away all opposition.
. . . [A]gainst the dangers . . . , the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit . . .Congress certainly cannot forbid all efforts to change the mind of the country. . . ."
The logic of Holmes and the dissenters gained ground. The fact words could incite violence or even revolution was not a justification for overly broad laws that punished peaceful activity equally with violent acts. The same should be true of gun ownership. Those who own guns peacefully should not be punished for those who engage in violent acts. Speech is dangerous because it can create the desire to do violence. Once the intent is formed, a means can always be found.
"Political agitation, by the passions it arouses or convictions it engenders, may in fact stimulate men to the violation of law. Detestation of existing policy is easily transformed into forcible resistance of authority . . . and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of free government. The distinction is not scholastic subterfuge, but a hard bought acquisition in the fight for freedom . . . .
When it came to the Bill of Rights, the Court recognized that it had a special duty:
"There may be a narrower scope ...of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments . . ."
Throughout the 20th century laws continued to be passed against Communists and others who advocated the violent overthrow of the government. The enforcement of those laws began to be restricted to instances where there was an intentional and imminent threat of violence. As the century moved forward, the battle for the First Amendment was taken up by Martin Luther King and the Civil Rights movement.
So what does the development of the First Amendment have to do with the Second?
Words that state "Congress shall make no law respecting Abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance," were not intended to only protect newspapers. Note, the word "people" is not contained in the clause relating to freedom of speech or press. The right to petition the government is not limited to electing representatives to Congress. Even though speech is the prelude to violence, it is protected. The purpose of the Bill of Rights is to limit government's infringement of basic human rights, not to help law enforcement.
"Those who won our independence," pointed out Justice Brandies, "believed that the final end of the State was to make men free to develop their faculties . . . They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. . . They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government. . . . even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy. . . Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgements of the rights of free speech or assembly."
The Second Amendment states "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." The people of the Second Amendment are the same people of the First Amendment and the same people who ordained and established the Constitution as stated in its preamble. Their right to keep and bear arms is stated as being necessary to the security of a free state by the authors of the bill of rights. They are the same people that the government of Washington, DC, fears.
The preservation of the Second Amendment as an individual right of people to keep arms is essential to the preservation of the First Amendment as was well understood by those who created our government out of violent revolution and civil war.
Within our lifetime, black Americans were murdered for publicly claiming to have the same rights as other Americans. In some instances, not only did local law enforcement turn a blind eye to the activities of groups such as the KKK, but their officers participated in hate killings.
Until very recently, organized crime in Massachusetts had so corrupted law enforcement that their allies were on the local police force, the State Police force, and even in control of the local FBI. People who complained to the police about the Winter Hill gang, just disappeared.
In our major cities, prosecutors say that people will not come forward to testify about gang members. Why should they when other gang members show up in court with T-Shirts that say, "Don't Snitch" but honest people are denied the ability to have guns for self-defense?
A right without the means of enforcement is meaningless. Of what use is the right of "free speech" if people are able to burn your house down because of your beliefs? Of what use is a piece of paper that claims you have the right of free speech if the person in government you wish to complain about is the same person charged with protecting your safety? Of what use is a Constitutional right to life, if you have no way of defending it?
The American Revolution and the Constitution, rejected the idea of nobility by birth. Our government is run by men and women no different from the private citizens they serve. Our police officers are, as human beings, no better or worse than our ditch diggers. They are subject to the same vices that the rest of us are subject to. There is no reason to believe they are any more trustworthy than anyone else. Nor are our elected officials, by virtue of their election, more intelligent than the average person walking the street. Indeed, they are selected by those very same average people.
Washington, D.C. complains about the crime in its streets. Drug trafficking is a major cause of crime in our cities. From 1979 to 1991 and then from 1995 to 1999, Marion Barry, Jr. was the Mayor of Washington, DC. He is currently on the city council. His two terms as mayor were separated by a six month jail on drug charges. Is there any wonder DC has problems? Who do you go to when the man in charge is buying from the people who should be in jail?
Getting a handle on crime is about education and law enforcement. Many of the very cities that have the strictest gun laws fail to teach their public school students the values needed to sustain good citizenship. Many of those cities cut public safety money while preserving jobs essential to the political machines.
In 1780, at the height of American Revolution, John Adams, Samuel Adams and James Bowdoin wrote:
"The [purpose] . . .of government, . . . [is] to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life; . . .All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness."
Basic human rights are not granted by governments. They are "natural" rights, rights granted by God. The federal Constitution is also based on natural law. It clearly sets forth that government is a contract created by the people, adopted by the people for the sole purpose of protecting the rights of the people. Government has no other legitimate function.
Franklin Roosevelt once cautioned that there was nothing to fear but fear itself. It is fear that makes people think that they should give up some liberty for the illusion of security. Government policy should not be driven by fear, but by the recognition the greater good comes from honoring rights of individuals.
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