Sunday, April 03, 2016

The Second Amendment and militias

I want to expand a bit on the Second Amendment issues I mentioned in the previous post. Here with reference to Putting the Second Amendment Second by Akhil Reed Amar Slate 03/17/2016.

My first reaction to Amar's article was that it sounds like he may be up to some Tenther/states-rights mischief. (Why, yes, I do think I'm jaded about some things, why do you ask?)

He seems to be arguing straightforwardly for an NRA-friendly interpretation of the Second Amendment and gun regulations.

My understanding without doing an OCD web search is that the federal courts had few if any Second Amendment cases until the 1930s, because there weren't many federal gun regulations. One of the biggest federal mistakes in US history was to allow the soldiers in the disbanded Confederate Army to keep their weapons. It mattered a lot in the mid-1870s when just getting enough weapons for the legitimate state militias to defend democratic government against the pro-"Redemption" terrorist groups was itself a major problem. The "Redeemers'" violent overthrow of the democratic state governments in the South is the only real example of guns being used to defend against the "tyranny" of the federal government, the "tyranny" in that case being required to recognize the citizenship of black people.

Amar pretty much tires to stand that history on its head. Mississippi's last Reconstruction Governor Adelbert Ames could have given a graphic description of who was more desperately in need of weapons, the biracial official militia or the Klan groups of former Confederate soldiers. I don't need to re-parse that statute he cites to know that nobody in their right minds expected individual black people, much less black people organized into their own anti-Klan private militias, to be the main guarantors of democratic government. That's why the US kept an actual military occupation in place in the former Confederacy until 1877.

But from the 1930s until Heller in 2008, the federal courts including SCOTUS held the Second Amendment to apply only to state militias. That's partially because of the plain language of the Amendment, "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." Presidential candidate Barack Obama in 2008 endorsed the personal-rights interpretation before SCOTUS issued their ruling. Bipartisanship!

The actual text of the Consitution matters as well as the legislative history. And the legislative history is also pretty straightforward. The Second Amendment was included in the Bill of Rights at the demand of slave states who wanted to be sure the federal government wouldn't ban slave patrols, the institution by which white non-slaveowners were required to patrol for escaped slaves. As I mentioned in the preceding post, it was an important institution in terrorizing slaves and free blacks, as well as giving nonslaveomwning whites the dubious satisfaction of getting to harass and brutalize black people just like their slaveowning betters. They were also a direct predecessor of the post-Civil War Klan-type terrorist groups.

In that last post, I also linked to Robert Bateman's article on the legal and historical meaning of "militia," Hey Oregon "Militia": Here's the History Lesson You Missed 01/07/2016. Short version: it has never meant some white guy sittin' at home with his own AR-15 waiting for a scary black kid to step on his property so he can finally git him the chance to exericse his Second Amendments rights to murder black people. (Did I mention I'm jaded about certain things?) Bateman writes: "There is no such thing as a 'locally organized' militia that is not subject to the authority of a State or the Federal Government. Indeed, such is almost explicitly prohibited, in no small part because the Founding Fathers wanted to prevent something like Shays' Rebellion [of 1786-7] from happening again."

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