Constitutional Aim and the Second Amendment

By J.F. McKenna

Whether you own a firearm or not, you have a proprietary interest in the current gun control debate. From Avon in Ohio to Anaheim in California—even if you don’t know the difference between a firing pin and a safety pin—the debate confronts us with more than our differences to tactical approaches to safe schools, safe streets, and safe homes.

The core issue, the right of the people to keep and bear arms, speaks to our agreed bond under the Constitution itself, or what an iconic Supreme Court justice describes as “words…to be taken in their natural or obvious sense, and not in a sense unreasonably restricted or enlarged.”

In essence, does the Second Amendment mean what it says? If it does, how can anyone, whether well- or ill-intended, not change the fabric of the nation’s compact by any unreasonable restriction or enlargement of the amendment’s words?

In the wake of the horrific Newtown, Conn., school shootings, red-hot polemic is the order of the day. Only this morning, I read one editorialist’s proclamation that the “effort to do what is reasonable and right may yet be lost—beaten down by the usual excuses and false pieties concerning the Second Amendment. Despite what the critics will say, the President is not taking away the rights of Americans to possess firearms. He has targeted assault rifles and large magazines that nobody has a constitutional right to own.”

Such sentiment, though heartfelt, weighs in a little light on facts. As a wise man once said— with a backup chorus of my history professors at Kent State—“everyone is entitled to his own opinion, but not to his own facts.” The facts, both from the primary and the secondary sources, are indisputable with regard to the Second Amendment.

If you’ll forgive the pun, a bit of Story is in order.

In 1840 U.S. Supreme Court Justice Joseph Story issued A Familiar Exposition of The Constitution of the United States. Among serious scholars Story’s status as a constitutional sage remains the gold standard, but the familiarity of his book-length treatise is nearly non-existent among today’s public-square pundits. A pity for all of us living in the 24-7 news cycle.

In addressing the Constitution’s Second Amendment as a whole, Justice Story focuses on his day and the nation’s days to come, emphasizing that “among the American people there is a growing indifference…and a strong disposition, from a sense of its burdens, to be rid of all regulations….There is certainly no small danger, that indifference may lead to disgust; and disgust to contempt; and thus gradually undermine all the protections intended by this clause of our National Bill of Rights.”

According to Justice Story’s historically grounded thinking, the consequences of undermining the amendment’s intent are clear. Like founding father George Mason, the jurist equates militia with the people, and then offers these words of caution as the rationale for the amendment’s very existence:

One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a militia. The friends of a free government cannot be too watchful to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.

Already I hear carping about men such as Justice Story being suspended in another time, another place, in American history. At the same time, I read such phrases as the proposed “list of executive proposals and executive orders…the stuff of common sense, not a threat to liberty.”

I direct the political tacticians to President Obama’s comment that the gun laws can be changed “if the American people demand it,” and then point them in the direction of the polls that show the demand is hardly overwhelming. To the political philosophers, both inside and outside that phalanx of tacticians, I ask if the good justice is correct in saying the foundations of the Constitution are solid as well as enduring. And if Justice Story is correct, can the people allow the dilution of the Second Amendment without diminishing the grand contract itself?

In short, is ours the grand contract—or is it not?

America’s struggle with domestic violence remains one of the nation’s greatest challenges, but facile “solutions” tend to create even greater problems. And equally facile political talk, to quote George Orwell, tends to “give an appearance of solidity to pure wind.”

 

 

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, communications consultant and former editor of the national manufacturing magazine Tooling & Production. He has chased stories throughout the country and as far away as Japan, Israel and that most exotic of financial lands, Wall Street. Reach him at jfmckwriter23@yahoo.com or through his LinkedIn profile: Jos. F. McKenna.

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