Wednesday, September 25, 2019


“I Don’t Want to Change the Constitution”

With those words, a woman recently argued to me her reason for not signing a petition to ban assault weapons. The amazing lack of historical context and perspective the gun manufacturing lobby has been able to insert into the collective psyche of a sector of our society is overwhelming. I must comment.

The Constitution’s preamble starts with “We the People of the United States, in order to form a more Perfect Union…” stating thus, from its beginning, that imperfection is a constant and the search for perfection eternal. That would mean that amendments and clarifications may be required—and currently there are twenty seven.

The structure of the U.S. Constitution is particular in that it is one of, if not the only one, that does not directly address the rights of citizens in its main body, only the way government should be structured or, well, constituted. Articles 1 to 3 establish the branches of government, the fourth the relationships between the states, the fifth is on amendment procedures, the sixth and seventh on transitional and ratification procedures—and that’s it.  Seven articles relating to how to establish a central federal government out of a federation of states; and then there is the Bill of Rights: a separate document discussed and approved at the same time as the body of the Constitution in September of 1787 and ratified by the States in 1789. It is not even until the Fourteenth Amendment, ratified in 1868, that the question of who is a U.S. citizen was clarified.

By constructing the founding document this way, the framers allowed the structure of federal government and states to maintain stability while at the same time establishing separately the individual and collective rights that regulate civil interaction between the members of their society, rooted in past tradition and common law, and which may or may not change in the future; and this latter one is an important point. The Constitution as originally written, for example, includes the following:

“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (Art. IV, Sec. 2)

Other provisions in the Constitution, listed in Article 1, establish the existence of “free Persons” and that those who are not count as three fifths or not at all: “Indians not taxed.” This implicit consent and ratification of slavery and race inequality within the body of the constitution was changed with the ratification of the Thirteenth Amendment in 1865, seventy six years after the Constitution and the Bill of rights were written. As a supplement, the Fifteenth Amendment prohibits the denial of the right to vote based on race or previous servitude (slavery). Those two amendments “changed the constitution.”

Has the Constitution “changed” in any other ways? Article 1 establishes that Senators are to be chosen by the legislatures of each State. In 1912 the Seventeenth Amendment established that Senators would be directly elected. Some amendments should not have been a constitutional issue, such as Prohibition (Eighteenth Amendment), properly repealed in 1933 by the Twenty first Amendment. We are striving for “a more Perfect Union,” after all, so imperfections are allowed.
In 1919 it was determined that the word “Person” in the constitution included women, and the right for women to vote was proclaimed in the Nineteenth Amendment, technically a clarification, not a change –which means clarifications are allowed.

The Second Amendment

Having established that the Constitution can be changed or clarified, the third important caveat is the issue of interpretation. For this, we may look into the most significant Supreme Court ruling affecting the “right to bear arms” as expressed in the Second Amendment: DC v Heller. A selection of quotes from the majority opinion of the decision reads as follows:

“The term [Arms] was applied, then as now, to weapons that were not specifically designed for military use and were not used in a military capacity” (Opinion, p. 8)
“Like most rights, the right secured by the Second Amendment is not unlimited (Opinion, p. 54)
“[Nothing about] our analysis suggests the invalidity of laws regulating the storage of firearms to prevent accidents” (Opinion, p. 60)
“Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home” (Opinion, p. 64)  [1]

On page 55, the opinion argues that discussion on the right to possess military style weaponry as part of a civil militia as pointless—at the same time that it ratifies (once again, as before in several parts of the text) the existence of such things as “lawful weapons,” whereby, it follows, “unlawful weapons” can exist.

On page 57, the opinion argues that handguns are more effective for self-defense than long guns.

On pages 58 and 59, a short discussion on licensing is made, letting the licensing requirements stand, but not addressing the licensing issue per se, as both the Respondent (Heller) and Petitioner (DC) agree that licensing of firearms is permissible. Justice Breyer’s dissent makes this last point forcefully.

The body of the decision relates to the meaning of the Second Amendment. One of the most contentious stipulations is that the text of the Amendment is divided between a “Prefatory” and an “Operative” clause, meaning that what it says before the second comma is essentially meaningless. That is the heart of the opinion of the majority and addressed by most of the dissent by Justice Stevens, centered on the importance and weight or not of the phrase “well-regulated militia” and each word therein. Long discussions, ink and bytes have been spent on that argument and we will not go into that in this writing. [2]

Justice Antonin Scalia, a self-described “originalist” wrote the majority opinion, so the words are his. It is understood then that making military-style weapons unlawful for civilian use [3], background checks, safe storage and licensing laws would be consistent with DC v Heller. However, Heller is an opinion and interpretation of the Second Amendment that has been (mis)used by the gun manufacturing lobby to extend its market unlimitedly and dangerously. Justice Scalia, outside the opinion, was vocal about extending gun ownership. He even said once, while being interviewed by Chris Wallace, that people could conceivably be allowed to purchase and legally have rocket propelled grenade launchers (a.k.a bazookas); but within the confines of the court and his most significant opinion on gun rights, reason mostly prevails.

Having common sense gun laws is not changing the Constitution. Making weapons of mass murder illegal falls within the framing of the Constitution. Licensing and registering is constitutional, and weapon use and ownership can and should be licensed and registered. The gun manufacturing lobby has hijacked the Second Amendment and used it as a marketing tool. It is they that undermine the Constitution.

Article 1, Section 8 of the Constitution makes clear that no federal armed forces have authorized funding except for a maximum of two years, suggesting the framers did not want a federal level permanent armed force. If claims of faithfulness to the intention of the framers were to be taken at face value and no interpretations or corrections allowed, as “originalists” claim, the United States would not have a standing army. The US Army would instead be the “well regulated” militias referred to in the Second Amendment and would look a lot more like Switzerland’s where, in fact, it is a well-regulated militia (follow the link to see what that looks like) in charge of its national defense [4]. This same section 8 calls for the establishment of a Navy, with no specified timeframe, so the actual intention of the framers can be described as murky at best, but it has been adapted to the realities of modern life and economic reasoning of large capital investment in defense related assets (which would have been the case of the Navy at the time, for example). Amendments, clarifications, interpretations and corrections are part of “the Grand Experiment” of democracy undertaken by the United States, in search of a More Perfect Union.


Other essays on the issue of gun control:
ACCESS AND CONTROL, December 16th, 2012 (first reaction to Sandy Hook).
GUNS AND US – A CALL FOR ACTION, February 21st, 2018 (first reaction to Parkland)

[1] - 
Justice Scalia writes: "Before this Court petitioners have stated that 'if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,' by which they apparently mean if he is not a felon and is not insane." (Opinion, p. 59). Implicitly he is consenting to background checks.

[2] -  Let us mention, however, that in the section dedicated to explain the so-called Prefatory Clause, "Militia" is argued in a page and a half, while “well-regulated" is dismissed as an adjective that "implies nothing more than the imposition of proper discipline and training". Even in this glossing over, Scalia cites a dictionary of the time (Rawle) that would reaffirm the intention of the word "('Regulate': 'To adjust by rule or method')". "Security of a free state" is analyzed over one page. The majority opinion itself is 64 pages long.

[3] - The use of “Assault Weapons” or “Military Style Weapons” are euphemistic terms that normalize a tool designed to be used efficiently for mass murder and maximum damage. It is preferable to call them what they are: “Weapons of Mass Murder.”

[4] - The debate on standing armies and militias as well as their adscription to either the federal government or the states was extensive and can be appreciated in the Federalist Papers, particularly 29, as well as in the DC v Heller opinion and Stevens’ dissent. Alexander Hamilton makes an extensive case explaining regulated militias, Justice Scalia seems to water down the interpretation of what “well-regulated” means, while Justice Stevens perhaps overreaches.

Photo copyright belongs to its owner: Jim Watson/AFP/Getty Images. Originally found here


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