A Right to Gun Ownership?

orlando-shooting-memorialAs people continue to reflect on the horrors of the mass shooting last week in Orlando, FL, it is important to consider the U.S. policy on firearms that enables such easy access to weapons of mass destruction.

In the wake of the Orlando shooting, columnist Doug Saunders wrote an outstanding article for Canada’s national newspaper, the Globe and Mail, entitled, “How U.S. gun ownership became a ‘right,’ and why it isn’t.”

It is the best piece of journalism on this subject that I have seen, and contains some surprising facts that are rarely reported in the American media. Portions of article follow:

The American gun crisis, and the attitudes and laws that make it possible, are very new. The broad idea of a right to own firearms, along with the phenomenon of mass shootings, did not exist a generation ago; the legal basis for this right did not exist a decade ago.

Until 2002, every U.S. president and government had declared that the Constitution’s Second Amendment did not provide any individual right for ordinary citizens to own firearms. Rather, it meant what its text clearly states: that firearms shall be held by “the People” – a collective, not individual right – insofar as they are in the service of “a well-regulated militia.” …

“For 218 years,” legal scholar Michael Waldman writes in his book The Second Amendment: A Biography, “judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard,” and did not contain any individual right to own firearms.

Warren_e_burger_photoThe U.S. Supreme Court had never, until 2008, suggested even once that there was any such right. Warren Burger, the arch-conservative Supreme Court justice appointed by Richard Nixon, in an interview in 1991 described the then-new idea of an individual right to bear arms as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” …

NRA-logo-300x298For most of the 20th century, the National Rifle Association fought hard for gun control and strict limits on the availability of weapons. … [Later, however,] the gun-rights movement emerged from the anti-government fringes in the 1960s and ’70s, took over the NRA and raised huge sums to impose its agenda on U.S. lawmakers. And it crept, rather quickly, into mainstream U.S. thought through the Republican Party.
John_AshcroftIn 2002, John Ashcroft, previously known for his strong stances against racial desegregation and birth control, became the first federal attorney-general to proclaim that individuals should be able to own guns.

Then in 2008, in a reversal of all its precedents and a bizarre overturning of mainstream legal and historical scholarship, the Supreme Court ruled that there is indeed an individual right to own weapons (though one with limits).

That court was loaded with seven conservative judges appointed by Republican Presidents: John Roberts, Anthony Kennedy, David Souter, John Paul Stevens, Clarence Thomas, Samuel Alito, and Antonin Scalia.

A Controversial Supreme Court Decision

A bit of additional detail on this Supreme Court ruling is in order: The case the ruled on was District of Columbia v Heller. It concerned a D.C. policeman who, under a restrictive gun control law passed in Washington D.C. in 1976, was denied permission to register a handgun he wished to keep at home. The issue focused on whether or not the government can restrict the possession of firearms in light of the Second Amendment of the U.S. Constitution, which 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 attorney for the defence made the traditional argument that the Second Amendment applied specifically to the right to bear arms as part of a militia. Heller’s attorney, on the other hand, argued against that interpretation, insisting that the D.C. handgun ban was unconstitutional because it unnecessarily infringed upon an individual’s right to bear arms.

Antonin_Scalia_Official_SCOTUS_PortraitJustice Antonin Scalia wrote of the Supreme Court’s opinion in its 5 to 4 decision in favour of Heller, stating that in the court’s judgment individual possession of firearms is a constitutional right under the Second Amendment. This was a significant departure from previous interpretations of the Second Amendment.

Scalia’s judgment was challenged in a dissenting opinion by Justice John Paul Stevens who argued that the Second Amendment did not protect the use of firearms for non-military purposes. Stevens claimed that,

In reaching their decision “the Majority had set aside normal standards of interpretation in its decision.

[This is seen as a criticism of Scalia’s controversial use of “originalism” in interpreting constitutional documents.] As part of his dissenting view, Stevens specifically charged that,

The Majority had inappropriately ignored the first part of the Amendment: ‘A well regulated Militia.”

troiani-lexington-greenSince the right to bear arms as described in the Second Amendment is specifically within the context of a “well regulated Militia” providing for “the security of a free State,” it is difficult to see how this amendment applies to the private, non-military use of firearms. However Justice Scalia’s commitment to “originalism” allowed him to detach the second phrase of the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed” from the first phrase describing “a well regulated Militia.” In the view of many, this fundamentally distorted the reading and meaning of this article.

Justice Scalia’s ideological commitment to “originalism” was a radical departure from previous standards of jurisprudence. As described by Justin Driver, writing for The Guardian,

Rather than searching for the “original intent” of constitutional Framers, Scalia insisted, originalists should search for the Constitution’s “original meaning” for the public. This shift toward “original meaning” represented a shrewd intervention, suggesting that the Framers’ own understandings of constitutional text were less important than what ordinary citizens would have understood that text to mean.

It is easy to see the fallacy of this “originalist” argument. It is as if the content of a lecture by a respected scholar should be judged, not by that person’s careful research, noted expertise, and deliberate reflection, but rather by the average listener’s personal impression of what was said. Ridiculous!

When the highest court in the land tosses out any consideration of the “original intent” of the framers of the constitution, and relies instead on popular interpretation, the nation is in serious trouble.

Saunder’s article, however, ends on a hopeful note, saying.

The individual right to bear arms is only a few years old, and based on nothing; its fall could be as quick as its rise. Once the Supreme Court has two more appointments by Democratic presidents, it will eventually provide a correct interpretation of the amendment, the interpretation Americans knew and respected for 217 years.

Let us all hope so.

Credits: Militiamen painting by Don Troiani

Trump, Sanders, and the Future of American Politics

crossroadsAmerica stands at a crossroads. The general consensus is that government is not working as it should. People are resentful. They are angry. They no longer trust the traditional solutions that their elected leaders have been offering them.

There is a powerful insurgency in the making. And it is not pretty. In fact, it has the potential to be quite dangerous.

donald-trump-1Observers around the world have watched in disbelief as Donald Trump, an inexperienced political outsider with outrageous ideas and inflammatory rhetoric, has captured the Republican nomination for the U.S. presidency. His message is, in the words of Michael Enright, one of “populism, protectionism, and hostility toward immigrants, coupled with anger directed as mainstream” politicians.

And he is not alone. Insurgent candidates from the far-right of the political spectrum have fast been gaining ground in France, England, Austria, The Netherlands, and even Switzerland. Their movement is on the rise. But what kind of a movement is it? And why is it gaining ground at this time?

FrumThe conservative political commentator David Frum provided some helpful insights in an interview with Michael Enright on CBC Radio’s Sunday Morning program earlier this year (rebroadcast this past week on Ideas). Frum stated,

There’s an old saying that every election presents a choice: More of the same or something new. When times are good, people vote for more of the same – whatever you guys are doing, please keep doing it. But for most Americans, times have been very grim now for the past seven or eight years, and have been troublingly oppressive for close to fifteen.

Even today, after six years of economic recovery the typical American household makes $4,000 a year less than it did in 2007, there’s a lot of evidence that upward mobility has slowed down, and pessimism is overwhelming. And that is especially true among white Americans …

Frum went on to explain,

When you are doing well, people value experience. But what is the experience now? What has happened over the past fifteen years from the point of view of an American voter [when all the things] recommended to them by clever people [turned] out to be a calamity for most people – from investing in dot.coms to the Iraq war…, to the housing bubble, to the Wall Street catastrophe, to the stimulus that produced such disappointing results for so many people?

The result has been that

the people who are the accustomed and self-expected leaders of American society have just consistently failed to deliver results that were beneficial to the voters. And of course, and unsurprisingly, the voters no longer accept that leadership.

This certainly helps to explain why, at one point in the Republican race for the presidency the three leading contenders at that time – Donald Trump, Ben Carson and Carly Fiorina – all had absolutely no political experience. They were complete outsiders who rejected the proposed solutions of the political establishment and put forward their own distinctive ideas instead. And they had a considerable following. People didn’t want to hear the ideas that the career politicians and political insiders were offering. They carried no weight. People were looking for fresh answers – for different solutions.

Bernie Sanders, the self-proclaimed democratic socialist who has been running for the Democrats on the left, is also a political outsider. Although he is a career politician, he has always until this point run as an independent, unaligned with and unbeholding to the party establishment. And Bernie too has denounced the traditional establishment thinking of his adopted Democratic Party.

To nearly everyone’s amazement, Bernie Sanders has mounted a groundswell electoral campaign that has seriously rivaled that of the Democratic front-runner Hillary Clinton. He has captured people’s imagination. His rallies have enjoyed enormous turnouts. His followers are every bit as enthusiastic and engaged as are those of Donald Trump on the right.

Something important is going on here – something that may even signal the demise of the old political process.

Seeking New Answers

When asked last month by Michael Enright what lay behind this serious rift between established politicians and voters, Freddy Gray, the deputy editor of the conservative British magazine, The Spectator, explained,

I think we’re living in a time of tremendous change – technological change, social change – and political parties and the political centre both on left and right are struggling to comes to terms with this change, and they are struggling to adapt to what their voters want. And we see a lot of angry people who feel that there is a sort of elite who is getting richer, … and their country has been left behind. And this is affecting the right more than the left ….

He then added,

it used to be said that the left won the cultural war, the right won the economic war, and the centre won the political war. I don’t think any of those things are true any more. I think the right is losing the economic argument in many ways. The left is probably still culturally dominant, but with issues like free speech we are beginning to see things changing. And the centre – the politically central parties or neo-liberal parties that have been so dominant for the last twenty years (we think of Bill Clinton and Tony Blaire as the great examples of that) they are breaking down.

If the solutions being promoted by the traditionally “centrist” parties no longer have credibility, what will gain their trust? As David Frum reminds us,

The job of political professionals is to pay attention to what the non-professionals are worried about, and to compete to find solutions. When the political professionals don’t do that, they open the door for hucksters and flim-flam men of all kinds.

donald-trump-2Enter Donald Trump.

As I stated in a previous blog, Donald Trump, in his own audacious way,

single-handedly swept aside the carefully constructed coalition of conservative interests that have defined Republican ideology for the past 40 years.

The prevailing Republican strategy since the Nixon presidency had been to craft an alliance between a hard-core anti-communist faction, those opposed to new civil rights legislation, and those promoting a governmental “hands off” approach to economics.

This “three-legged stool” of core Republican principles, as Josh Barro refers to them, namely militarism, social conservatism and libertarian economics, has now been replaced by Trump’s inflammatory rhetoric focusing on immigrants, Muslims, and the very rich.

As David Frum noted in his interview with Michael Enright,

Donald Trump either intuited or discovered, that he could put together a new kind of message that was appealing to many of the people who had voted Republican, and it turned out that that so-called conservative base was not ideologically conservative in the way the inner party had assumed it was.

So if conservative ideology is not determining the political message, what is? The answer according to an increasing number of commentators is – Anger. Anger with the political establishment. Anger with the political and the economic elite. Anger with those who are seen as threats to traditional social and economic security.

Donald Trump has tapped into this widespread – and until now largely unvoiced – seething mood of anger against “the others” – those who are different, either culturally, economically or socially.

Trump’s inflammatory rhetoric against immigrants, Muslims, women and minorities, has been frequently been linked with racism and xenophobia. And there is certainly that dimension to it. But these, I believe, are expressions of a yet more fundamental grievance underlying everything else.

neil-macdonaldNeil McDonald, senior correspondent for CBC and formerly CBC’s chief Washington correspondent, put his finger squarely on this fundamental grievance in a CBC Radio national news broadcast this past Thursday. He said,

We’ve all heard of the angry white male. The angry white male thinks that he is somehow being deprived – which is a bit ridiculous because really white males still run everything. But it’s not just angry white males. It’s angry males and females. In fact, it’s class rage. And they feel that the ground is shifting under them. They are losing agency and they are losing power, and it’s the blacks and the Mexicans, and gays and transgendered – it’s all these people that are clamoring for a seat at the table that was previously populated by them.

One proposed solution taken by many, then, is to attack those “others” who seek a place at the table, who demand to be included and who, in doing so, subvert the privileged status of the dominant group that is accustomed making all the rules.

These formerly privileged individuals now see themselves and their traditional values as being under attack. They complain of a supposed “war against Christian values.” They claim that immigrants are taking away their jobs, that whites are being discriminated against in the workplace, that women should keep in line, and that homosexuals and transsexuals somehow threaten heterosexuals’ own identity.

We have seen these attitudes at play over many decades in the case of African-Americans. As Carole Anderson, the author of White Rage: The Unspoken Truth of Our Racial Divide, stated this week in an interview with Anna Maria Tremonti on CBC Radio’s The Current,

When African-Americans advance, you begin to see an incredible movement to undercut that advancement. … [T]his white rage is in fact very methodical, very clinical, and it cloaks itself in the language of democracy. Protecting democracy, valuing justice, valuing the ballot box. But in fact, doing just the opposite.

The well-documented phenomenon of “white rage” must now be extended to the broader issue of “class rage” that McDonald speaks of. Donald Trump has harnessed this class rage and has made it the cornerstone of his election campaign. It is potent. It is divisive. And it is extremely dangerous.

Bernie Sanders, on the other hand, has harnessed the power of a very different kind of anger. It does not target those who are already marginalized and merely asking for fair treatment and some degree of inclusion. It instead focuses on the various special interest groups that seek to maintain their privileged status – the careerist establishment politicians, the influential power brokers and political insiders, and the Wall Street elite along with their highly paid lobbyists.

Although this week Hillary Clinton secured her nomination as the candidate for the Democratic Party, Bernie Sanders has pledged to continue to his efforts to focus

on social justice, on economic justice, on racial justice [and] on environmental justice,

promising

that will be the future of America.

Two paths thus lie before the American people. In rejecting the policies of the past and mobilizing this new mood of public anger and even rebellion, they may take one of two courses of action: They may to attempt to retain the old lines of privilege, or they may work to ensure that all parties have representation at the table to hammer out new policies that will be of benefit to all.

At this point in time, however, it is not clear which path American voters will take.

 

Photo credits: Charlie Neibergal/AP; Mandel Ngan/AFP/Getty Imag