By Wayne William Cipriano
While I am generally in agreement with Justice Scalia’s approach to the Constitution of the United States of America, I am not discomforted by his leaving the bench.
Like some politicians, when some judges make the mistake of telling the truth about what is in their hearts and give voice to their most shameful biases (Scalia’s racial bigotry, for example) it is time for them to go.
Justice Scalia almost uniformly held true to his belief that the Constitution is not a living, elastic document but an ironclad, inflexible contract that means exactly today what its authors meant when they wrote it about 227 years ago. Essentially, if it is not in the Constitution, it is up to the individual states and/or the people to decide.
For example, Scalia’s understanding and muscular advocacy of the Constitutional right of individual citizens to keep and bear arms was based upon not only the clear language but also the unmistakable intentions of the framers. His instruction was correct: the reason the Second Amendment was attached to the Constitution, and in so high a position following only the freedoms of religion, speech, press, assembly, and re-dress of grievances, has nothing to do with target shooting, hunting, weapons collecting, nor self-defense.
The Second Amendment was ensconced to assure that an armed citizenry would always be able to forcibly resist its government whenever that citizenry might decide that only armed resistance provided the necessary force to protect their freedom when they feel that freedom is being unjustly denied.
The Revolutionary War had recently been fought and one of the greatest impediments those revolutionaries faced was the lack of arms available with which to fight the British Army and its allies. Having spent some time as 13 sovereign nations, the ex-colonies were understandably reluctant to place themselves under the domination of a new authority with no means to resist should their decision to unite under such authority turn out to be a poor one.
However, two questions still persist: Are these citizens in possession of arms granted that right so they may join under the banner of a singular previous colony, now one state within the United States of America, to resist the Federal Government when that state feels the Federal government is acting inappropriately and no other form of resistance is fruitful (think the Civil War); or are these citizens in possession of arms granted that right so that they may join under any banner, or act individually, to resist any government whenever that group or individual feels that government is acting inappropriately and no other form of resistance works?
Here Scalia’s insistence upon original ism or texturalism seems to slip a bit.
It can easily be argued that almost no government executives, from the most inclusive (the President) to those closest to us (village policeman, town marshal, county sheriff) desire armed citizens. And the reasons for that reluctance seen everyday on the news are tragically obvious. And yet, a Constitutional Amendment, rightfully difficult to achieve, to modify the Second Amendment cannot be seriously expected.
I can easily recall several years ago when the legislation enabling the right to carry concealed weapons appeared on our state ballot.
We try to vote in every single election even when the items are few and of vanishingly small importance to us. We walk into the voting venue, perhaps enter a line with one or two people ahead of us but usually step right up to the election officials, show our credentials, and collect our ballots. We mark them, deposit them, and are gone in ten minutes, tops.
When the concealed weapons legislation was up for a vote, there was a line out the door, down the sidewalk, and around the corner. When the votes were counted, I seem to remember the Douglas County totals were ten or twenty thousand votes for, six or seven votes against. Not only is there deep general resistance to any constitutional amendment, but those who support an armed citizenry and would oppose such a Second Amendment modification are easily marshaled and deeply committed.
There are good reasons to limit, even deny weapons to everyday citizens. I know a lot of people I would strenuously avoid if I knew they were armed. There are good reasons to allow, even require that weapons be kept by everyday citizens. We frequently hear of situations where the possession of firearms by erstwhile victims would have saved lived.
No matter where you come down on this issue, and notwithstanding the almost infinitely large infringement of the right to keep and bear arms that has taken place over the last two centuries (owning artillery, nuclear devise, tanks, explosive munitions, armed aircraft, mines, etc. etc. etc.) and the two questions asked above (just whose militia is it?), it is important to remember why the authors of the Constitution felt an armed citizenry was mandatory.
And it ain’t so we can all go plinking.