Michael Waldman, president of the Brennan Center for Justice at New York University School of Law and author of The Second Amendment: A Biography, is dipping his toes into the citizen journalism pool. Unfortunately his shorter polemic, ‘What the Second Amendment intended‘ seems to be at least as riddled with falsehoods, undulating lies and outright fabrications as his book. Right out of the blocks, he’s off on the wrong foot: “As school shootings erupt with sickening regularity…” . . .
I would say that 99% of the time when someone hears the term ‘school shooting’ it evokes thoughts of Newtown, Virginia Tech, Red Lake and others where a deranged individual or pair stalked through the halls of a school, killing randomly as they went. What it does not include is gang violence, domestic violence, nor a fistfights which escalate and just happen to occur in or near a school.
According to Everytown [sic] for Gun Safety in the 18 months since Newtown there have been 74 school shootings. Now even the most ardent of Second Amendment civil rights supporters would agree that weekly school shootings certainly qualify as sickeningly regular, but when CNN (hardly an NRA mouthpiece) finally got around to fact-checking that figure even they choked on it. Their amended count was 15 shootings in that 18 month period, but if you weed out the probable gang-related incidents and the ones (like the Santa Monica College shootings and the Isla Vista murders) where the location was incidental, the number drops to 8 with 10 people injured and 4 killed (not counting the shooters).
Am I saying that such numbers are acceptable? Not at all, but an average of one incident every 9 ¾ weeks hardly qualifies as “sickening regularity.”
Okay, now that we know where Waldman is coming from, let’s continue:
As school shootings erupt with sickening regularity, Americans once again are debating gun laws. Quickly talk turns to the Second Amendment.
But what does it mean? History offers some surprises: It turns out in each era, the meaning is set not by some pristine constitutional text, but by the push and pull, the rough and tumble of public debate and political activism. And gun rights have always coexisted with responsibility.
No Mike, the meaning of the words in the Constitution and Bill of Rights does not change. What happens is that people with an agenda try to warp and twist those meanings in order to show Constitutional support for their pet passion (much as you do in this article in fact). You are completely correct, however, that “gun rights have always [existed]”.
As for your claim that such rights coexist with responsibility, well of course they do! All rights must be exercised responsibly to keep from infringing other peoples’ rights. Note that I am talking about actual rights here. A true right gives you the freedom to perform (or refrain from performing) an action; it doesn’t include the requirement that someone else perform (or refrain from performing) an action, nor does it allow you to infringe upon the rights of others. You have the right to worship as you choose, but you do not have a right to be provided with a church. The right to light a fire for warmth does not include the right to burn down a hundred thousand acres of forest.
But Waldman is just starting with the egregious errors:
At 27 words long, the provision is the shortest sentence in the U.S. Constitution.
Okay, how can we take this guy seriously when he can’t even count? The very first sentence after the preamble gives the lie to this statement:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Twenty-five words. Section 2, 4th and 5th lines, 22 and 19 words respectively.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
How about Article II Section 1?
The executive Power shall be vested in a President of the United States of America.
Fifteen words. I could continue but I think my point is made, so let’s see what Mikey comes up with next:
What about today’s gun-rights debates? Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention; nor with scattered exceptions in the transcripts of the ratification debates in the states; nor on the floor of the U.S. House of Representatives …
Well of course not! They didn’t discuss whether the sun comes up in the East or if people should be allowed to grow food, either. The natural, fundamental, and inalienable human, individual and civil right to self-defense is so fundamental that the Founders never even considered the possibility that anyone could question it. But at the end of this paragraph Mike gets really low-down and dirty trying to support his idea that the Second is just about militias:
James Madison’s original proposal even included a conscientious objector clause: “No person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Sounds reasonable enough, but is that all there was to the Madison’s original proposal? Not hardly:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously etc. …
Looks to me like Waldman indulged in some creative editing there. As originally proposed it is clear that the Founders wanted to protect an existing right to keep and bear arms, and if you read the notes from the ConCon that Mikey claims to have read you will see that they considered the differences between what was proposed and what was passed to be merely stylistic.
Mikey then attempts to justify today’s gun laws by bringing up examples from the Colonial and Revolutionary eras:
To be clear, there were plenty of guns in the founding era. Americans felt they had the right to protect themselves, especially in the home, a right passed down from England through common law. But there were plenty of gun laws, too. Boston made it illegal to keep a loaded gun in a home, due to safety concerns.
Once again, our author skips neatly past the meat (and truth) of the issue, hoping that his readers will assume that “safety concerns” means something similar to some states’ “safe storage” laws, meant to keep guns out of the hands of children and criminals . Unfortunately for him, a Clayton Cramer piece (which includes the text of Boston’s law) in the November 1, 2004 issue of Shotgun News debunked the idea that this law was about gun safety. In fact, according to Mr. Cramer it was about fire safety. As Cramer says:
A careful reading of the statute, however, reveals that its purpose was not a general ban on loaded guns in Boston, but leaving unloaded guns unattended in buildings. … The text does not prohibit carrying loaded firearms within the city of Boston–only taking them into a building–and one could infer from the preamble, the law only prohibited depositing loaded firearms in buildings.As the preamble makes clear, this law was for the protection of those fighting fires, not to prevent criminal misuse of guns, and certainly not to prevent citizens from defending themselves on the streets.
Mikey has still more examples of early gun laws:
New York, Boston and all cities in Pennsylvania prohibited the firing of guns within city limits. States imposed curbs on gun ownership. People deemed dangerous were barred from owning weapons. Pennsylvania disarmed Tory sympathizers.
It’s true that many states passed gun control laws prohibiting ownership or sale of guns to “Negroes and Indians”, Catholics and people loyal to the Crown. Indeed such laws continued to be passed and upheld well into the 20th century. Witness the Florida Supreme Court’s 1941 ruling in Watson v. Stone where Justice Buford stated in his opinion:
“I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State … and the Act was passed for the purpose of disarming the negro laborers … The statute was never intended to be applied to the white population and in practice has never been so applied.”
Unlike Mr. Waldman I do not believe that discrimination based on race, creed or political affiliation is a good thing that should be continued.
Mikey had more, but it’s really more of the same lies, half-truths, bad examples and stupid errors (shortest sentence in the Constitution? Really?) so I will leave you with this thought: If only the Founders had passed the Second as originally written maybe we could have avoided a century or more of unConstitutional laws and faulty jurisprudence.