Piercing The Veil Of The Second Amendment

I’ve long struggled with the Second Amendment as my last two articles from 15 years ago proves. My new rule was any honest interpretation of the Second had to explain everything and be contradicted by nothing. So this is my latest attempt...

First an explanation on the difference between natural right and positive rights. A natural right is one that exists in a state of nature... no social structure, no government. The right to defend oneself and the right to own property would be considered natural rights. In his introduction to his draft Bill Of Rights Madison goes through the type of rights he seeks protection for. He describes a positive right here:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature

Source: https://www.usconstitution.net/madisonbor.html

Militias don’t exist in nature. There’s no natural right to be in a government created militia nor own a gun for such duty. The Second is clear it deals solely with a well regulated militia being necessary for the security of a free state.

Prior to the Constitution all the states had such militias and it was the duty of able bodied men to belong to their militia. But is the Framers hoped to avoid a standing army, those state militias had to be standardized hence this part of Article 1, sec 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts 
and Excises... To provide for organizing, arming, and disciplining, the 
Militia, and for governing such Part of them as may be employed in the 
Service of the United States, reserving to the States respectively, the 
Appointment of the Officers, and the Authority of training the Militia 
according to the discipline prescribed by Congress;

It was not long before several states realized this meant Congress could disarm or neglect their state militias.

At the Virginia Ratification Convention, Patrick Henry said:

Let me here call your attention to that part which gives the Congress power “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States — reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither — this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.

The fear Congress could use Art 1 disarm or neglect Virginia’s militia, and the security it provided against both the federal government and slave revolts, led to the Virginia Ratification Convention suggesting this as an amendment to the Constitution.

 That each state respectively shall have the power to provide for organizing, arming and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion, and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own state.
https://www.usconstitution.net/rat_va.html

Madison signed on to this request and knew damn well what VA... and later NC, wanted when he drafted the BoRs. North Carolina used the same language for its request for an amendment.

The Second was never a natural right but a positive right, a limitation on the then new powers of Congress. If Madison solely meant a natural right he could easily have borrowed the language from the 1776 Pennsylvania constitution as the basis of the Second:

“That the people have a right to bear arms for the defence of themselves and the state...” https://avalon.law.yale.edu/18th_century/pa08.asp

In keeping with its Art 1 powers Congress passes the Militia Acts of 1792 which mandates militia members acquire their own firearm.

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.... That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Source: https://constitution.org/1-Activism/mil/mil_act_1792.htm

Again, what natural right could the Second protect when there was no choice but to acquire a firearm?

But by 1808 the militia was still poorly armed and Congress, using its Art 1 power to arm the militia passed the Militia Act of 1808 where it begins to arm the state militias.

Source: https://en.wikipedia.org/wiki/Militia_Act_of_1808

In 1903 Congress again used its Art 1 powers to officially dissolve the idea of a “universal” militia and moved to select and a reserve militia. The select militia would be well trained and be called the National Guard and the reserved or unorganized militia had no purpose.

In the end we KNOW who the well-regulated militia of the Second is... it’s the only ones subject to Congress’s Art 1 powers and Art 2 presidential powers for militia call-up... and that is the state national guards which for over a century have been integrated into the Army and are equipped by Congress. 

Which then brings up Heller, a Supreme Court decision where Scalia magically finds an individual right to a firearm in the Second. By right any individual right to a firearm was simply unenumerated, covered by the Ninth. But Scalia spent his career on an anti-constitutional jihad against the Ninth claiming in From Troxel v Granville

"The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."
Source: https://caselaw.findlaw.com/us-supreme-court/530/57.html

Here Scalia bastardizes the Ninth here as he did the Second in Heller. Scalia's wrong. It was never the job of the court to decide what unenumerated rights were. It was their job to find whether government was given any power to restrict the rights in question in the first place. 

Scalia, like Bork, was Reagan's second attempt to please the social conservatives and anti-abortionists that he invited into the GOP. If the Ninth could be stripped of all meaning, various liberation groups using the courts to challenge restrictions on rights would have one less constitutional argument.

 

ulTRAX

6-23-21

 

 

The 911 Comission's Classified 28 Pages: Protecting The Saudis? Or Bush's Lies For Iraq War?

The Congressional Joint Intelligence Committee launched its investigation into the 911 attacks in February 2002  http://fas.org/irp/crs/RL31650.pdf and the final report was release in Dec 2002... that is all but 28 pages classified by Bush Junta.

The thinking has long focused that this section of the report was classified to protect Saudi Arabia. But what if Bush had another motive? And what if Obama does as well for keeping this report classified?

Late 2002 was a critical time for Bush's campaign for his illegal war of aggression against Iraq. The propaganda campaign against the American public had been intensified since the spring. Bush managed to get through Congress approval for a war if certain conditions were met. One condition was to get the approval of the UN Security Consul.

In December 2002 the US was at the UN trying to manipulate the UN Security Consul into approving new WMD inspectors for Iraq. But behind the scene Powell was pushing for language that would allow the US to invade Iraq on its own should Iraq be found in material breach of previous UN resolutions on WMDs. That ploy failed. In January 03 Colin Powell went to the UN to make the case for war. He never had much of a case and his dishonestly haunts him to this day.

And yet domestically the Bush Junta's systematic campaign of lies had worked. Back in 2002-03 about 70% of the US public believed invading Iraq was in retaliation for 911 and about 85% of the
GIs going to fight in Iraq did as well.

Would releasing the FULL Congressional Joint Intelligence Committee's report on 911 in December 2002 have undermined the lies Bush was telling about Iraq? Surely it would have. We can understand Bush's motives. But why after nearly 8 years has Obama refuse to release these 28 pages?

We know that even before Obama took office he signaled he'd not investigate possible war crimes and illegal spying domestic activities by Bush.

http://www.nytimes.com/2009/01/12/us/politics/12inquire.html
https://jonathanturley.org/2010/12/02/wikileaks-obama-administration-secretly-worked-to-prevent-prosecution-of-war-crimes-by-the-bush-administration/

Is Obama protecting the Saudi's or his decision not to prosecute members of the Bush administration? Is he protecting the illusion that those 4000 and possibly a half million Iraqi civilians died for nothing?



Like with Obama's refusal to go after Wall Street thieves and sociopaths... we may never know.



ulTRAX

Class Warfare Was Built Into The Constitution

During the secret debates over the drafting of the Constitution Madison said the following...

MADISON: The man who is possessed of wealth, who lolls on his sofa, or rolls in his carriage, cannot judge of the wants or feelings of the day laborer. The government we mean to erect is intended to last for ages. The landed interest, at present, is prevalent; but in process of time, when we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability. Various have been the propositions; but my opinion is, the longer they continue in office, the better will these views be answered.

source: http://www.yale.edu/lawweb/avalon/const/yates.htm

Madison clearly anticipated class warfare and his solution was not to give both the wealthy and the commoners equal power in the Constitution, but to give the elites a veto over the commoners in the Senate. Clearly the Electoral College, which can override the popular vote for president, also serves this function.

But the powers of the Senate go further than just providing the elites a veto over legislation. The Senate has exclusive powers in the areas of treaties and nominations... as well as the final world on removing a president from office.

We can debate whether the Senate remains the bastion of wealthy elites, or was ever the body of the wise elders. That extreme demagogues like Ted Cruz can be elected to the Senate certainly undermines that notion. But Madison's institutional power arrangement survives regardless who is in the House or Senate. Now it's really a minority of states with 18% of the US population which has that veto over the House, and exclusive powers over treaties and nominations.

Yup... the Senate was meant to be our House Of Lords. Curiously... Tony Blair led an effort to reform the House of Lords. https://en.wikipedia.org/wiki/Reform_of_the_House_of_Lords Yet not even US liberal Dems seem capable of considering any similar reform efforts here in the US. Not even a Bernie Sanders ventures here. Dems seem too smitten by the fact a well placed Senator might sabotage any noxious right wing bill. Missing from their consideration is how the Senate gives a mere 18% of the US population a majority in the first place. If they cared in the least about the democracy they claim a monopoly on... they'd see the absurdity of their views.

Why are such issues never discussed? Why, despite its failings, do these structural defects in the Constitution escape scrutiny?

In Federalist 49 Madison argues against making the Constitution easier to reform because that might focus the People on its defects. He believes that the masses must VENERATE their government to insure stability:

In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.

Madison's hope obviously prevailed in this regard. The Constitution is virtually reformproof. NONE of the core antidemocratic features of the document has ever been reformed. Sadly, even liberals in this nation have opted for unquestioning veneration. Our antidemocratic and reformproof system have become principles unto themselves and liberals who should know better merely accept and work within that framework.



ulTRAX

Mimimum Wage Workers Subsidize Our Economy

This is not a perfect exercise.

The value of the federal minimum wage in 1968 was $1.60 according to

http://www.dol.gov/whd/minwage/chart.htm

and using the inflation calculator at

http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=1.60&year1=1968&year2=2012

gives us a value of $10.50 in 2012 but the actual minimum wage is only $7.25. This is a loss of $3.25 per hour or $6,760 a year for a full time MW worker.

According to http://www.bls.gov/cps/minwage2012tbls.htm some 3.55 million wage workers got this minimum wage or below in 2012

3,550,000 
6,760 ×
--------------------------
$23.998 BILLION = lost wages

This number only includes those at the minimum wage or below... NOT those between the minimum wage and the $10.50 per hour range.

So who's benefited from this $24 billion a year subsidy the economy got in 2012? And remember these are just rough numbers for one year.

This raises other issues of increased safety net expenditures AND lost tax revenue. But then we can always kick the can down the road by borrowing for those safety net programs so future taxpayers will be subsidizing our irresponsibility today.


ulTRAX

Do Those 27 Amendments "Prove" We Can Really Reform Constitution?

Whenever I bring up in political forums the anti-democratic and virtual reform-proof nature of the Constitution someone will invariably protest that we already have 27 Amendments... and this somehow "proves" the Constitution CAN be meaningfully reformed. 

With 27 amendments over 223 years that's about one every 8 years. It sounds like there's plenty of flexibility. Maybe they have a point... or not. To which I counter NONE of these amendments reforms dealt with any of the core defects of the Constitution centering on the anti-democratic principle of state suffrage... the bizarre notion that the 600k in Wyoming deserve the same political power as the 40 million in California. 

Our system is not just anti-democratic, the formula for amendments is now so insane that even Scalia, yes the far right hack Justice SCALIA admitted this was the case. He  that it might never truly be reformed. He says so at 1:06:30 into this CSpan video https://www.c-span.org/video/?318884-1/justices-scalia-ginsburg-amendment-freedom Scalia  says states with just 4% of the US population can block any needed reform, but it might just represent 2%, a bare majority in those states. What Scalia didn't mention is states with just 40% can ratify any horrible amendment... and using Scalia's logic, that can mean just 20%.

Here's a breakdown of amendments by category... feel free to break them down in other ways:

INDIVIDUAL & STATES RIGHTS: 1-10 plus 13th, 14th

FINE TUNING THE CONSTITUTION: 11th, 12th, 16th, 20th, 22ed, 25th, 27th

PROHIBITION & REPEAL: 18th, 21st

EXPANDING VOTING RIGHTS: 15th,  19th,  24th,  26th

MAKING THE CONSTITUTION LESS ANTI- DEMOCRATIC: 17th, 23ed

The first ten amendments, aka The Bill Of Rights, were suggested by the states as the price of ratification. That leaves 17 amendments over 223 years or one amendment every 13 years.

If we take away the 7 that I've put into the "FINE TUNING" category that leaves 10 amendments over 223 years or one, on average, every 22.3 years. These amendments cover things like presidential terms etc.

Take away Prohibition and its repeal... that leaves 8 amendments over 223 years giving us one amendment averaging about every 28 years.

That leaves 6 amendments that in some way make the Constitution less anti-democratic... that gives us one amendment every 36 years. These amendments fall into two categories.

The first category is expanding the vote to groups who arguably should NEVER have been denied the right: Slaves (15th), Women (19th), Those who can't afford a poll tax (24th) and 18 year olds (26th).

The second category deals with some aspect of the anti-democratic structure of the Constitution itself. Here we have but TWO amendments... giving us ONE reform amendment, on average, every 111 years. Those reforms were allowing direct popular vote for the Senate... and giving EC votes to those in Washington DC. All of these amendments are mere tweaks.

The sad reality is NONE of those 27 amendments to date have reformed ANY of the core anti-democratic features of the Constitution connected with the anti-democratic concept of state suffrage... the EC, the Senate, the exclusive powers of the Senate to ratify judicial nominees or treaties, the amendment process, etc.

That's ZERO serious reform amendments in 223 years!
 
Which brings us back to my original question... is our system so anti-democratic that it can never truly be reformed? And if so... what are we who value democratic principles to do as demographic trends make the Constitution even more anti-democratic and more reform-proof?


ulTRAX