Thursday, December 27, 2012

What's the deal with "a well-regulated militia"?

In his opinion in DC v. Heller, which ruled that the Second Amendment guarantees the individual right to keep and bear arms, Justice Scalia essentially ignores the first clause of the amendment: "A well-regulated militia being necessary to the security of a free state..."

I was teaching a class in the History of the U.S. Constitution this fall and we puzzled over this amendment. One of my students opined that it was intended to give the people the right to organize militarily against their own government. I think that's the standard view of many assault-weapons supporters; but it seems clearly crazy to incorporate a right of sedition into a document designed to create a more perfect union, particularly just four years after the trauma of Shays' Rebellion, which demonstrated the need for a strong central government in the first place.

So, if we at least provisionally take off the table the idea that the Second Amendment was designed to protect the right of insurrection, what are we to make of the militia language?  What did the founders mean about the militia being necessary to a free state? Why might a lot of Americans be worried that the new federal government might try to suppress militias?
Proclamation Line of 1763

Let's look at who the militias of the 1780s were created to defend against. Anyone? Anyone? Bueller? Right: they were formed by western settlers who kept pushing into Indian and Spanish territory and provoking retaliatory raids by the locals. Not surprisingly, the Congress found this activity annoying because they couldn't control it, and it destabilized relations with our neighbors. The settlers were worried that the new federal government might want to sign treaties with the bordering tribes and European colonial powers and try to force them out--just as the British had tried to do to enforce the Proclamation Line of 1763 after the French and Indian War. There was no way the Western settlers were going to support a central state that could take away their lands.

This is the best way to understand the totality of the Second Amendment in its own context, I would argue. The frontiersmen of 1788 stood in roughly the same relation to their government as the Israeli settlers on the West Bank: on the one hand, they were the tools of the policy of the state; on the other, their homes were in constant potential danger if the state decided to change that policy.

And, as Joseph Ellis reminds us in American Creation, the state did intend to rein the settlers in:  "the leadership of the new national government created by the recently ratified Constitution declared its determination to avoid a policy of Indian removal at almost any cost" (p. 128).  But Amendment II to the Constitution essentially took the government's ability to prevent it off the table from the outset.

How do we know the Second Amendment was not about individual gun rights? Imagine if the Israeli government proposed to take away the settlers' guns. Given the security conditions on the West Bank, or really throughout Israeli territory, such a proposal would be literally unthinkable. The same situation existed in the early republic. Nobody passes a law to prevent something that nobody would ever propose. That's why you have to take the militia clause of the Second Amendment seriously.

Saturday, December 22, 2012

Miscegenation: a non-concept

This is the 149th anniversary of the publication of Miscegenation: The Theory of the Blending of the Race, Applied to the American White Man and the Negro, a sham pamphlet by journalists David Goodman Croly and George Wakeman published to discredit the Republicans in the election of 1864. The pamphlet, supposed to be written by an anonymous abolitionist, championed the policy of intermixture between whites and blacks as a solution to the race problem.  It was written plausibly enough that real abolitionists were wary of denouncing it.  

Miscegenation was exposed as a fraud in November 1864, but by that time the word had entered the language. It remains enshrined in dictionaries to this day.

To use the word “miscegenation” uncritically is no different from employing seriously the term “drapetomania,” Samuel Cartwright’s medical term for slaves’ “stealing themselves,” i.e. running away. Both are neologisms giving names to false concepts—stigmatizing and pathologizing phenomena that had not previously had their own names. (The original word for interracial mixing was "amalgamation," which also denoted erasing the line between Federalists and Republicans.) Each term denotes violating an artificial and unjust rule. We don’t use “drapetomania” anymore without quotation marks; neither should we use “miscegenation,” coined just thirteen years later, except to understand the political function of the concept of race.

Tuesday, December 18, 2012

Why Americans Need Assault Weapons: Rep. Louie Gohmert

Hats off to Rep. Louie Gohmert for offering the only honest reason for civilians to own assault weapons: to engage in sedition.

WALLACE: I understand the right to bear arms and the Supreme Court has made it clear that the founders meant what they said when they put the right to bear arms in the Constitution, but let me ask you the question Dick Durbin asked. Why do people need these semi- automatic weapons?
I was reading about the Glock he had and the Sig Sauer he had, five bullets a second. There is the Bushmaster. I mean, these were created for law enforcement. These were created for the military. Why does the average person -- I can understand a hunting rifle, I can understand (inaudible), why do they need these weapons of mass destruction?
GOHMERT: Well, for the reason George Washington said a free people should be an armed people. It ensures against the tyranny of the government. If they know that the biggest army is the American people, then you don’t have the tyranny that came from King George. That is why it was put in there, that’s why once you start drawing the line, where do you stop? And that’s why it is important to not just look emotionally our reaction Chris is to immediately say let’s get rid of all guns, but that’s why you do that as a judge, you react emotionally, but you use your head and you look at the facts.