Thursday, December 27, 2012

Second Amendment: a fundamental right comes with an affirmative responsibility

Philip R. Cook, in a (Dec. 26) New York Times book review “Voice of calm in the debate on guns”, a review of “Living with Guns: A Liberal’s Case for the Second Amendment”, by Craig R. Whitney [Public Affairs] brings to the head a major legal point in the way the Second Amendment is argued as a “fundamental right”.

The Bill of Rights, in its wording, notes that “the right of the People to keep and bear arms” was already established.  But able-bodied men were often required to join local or state militia, as colonial America developed and after independence. The earlier right had pre-existed as necessary for life on the frontier.  The intermediate right in a local community of state was seen as necessary to hold off tyrannical external government – the last aspect of which is no longer very practical today as it was in the 1700s.

The state militia have been replaced by a volunteer National Guard.  But during the 1960s, when men were drafted (for Vietnam) they would try to get National Guard or Reservist spots so they could serve just six months.  Nixon ended the draft in 1973, but discussions of reinstating it sometimes come up, as in 1980 (the Soviet invasion of Afghanistan) and of course after 9/11, when Charles Moskos  “came out” for conscription at the same time he was backing away from his “don’t ask don’t tell” policy, realizing that it could make an egalitarian form of conscription in a post-9/11 world impossible.  Discussion of either of these issues is mute right now, but the idea of the draft could come back (although it would probably not be male-only, although the Supreme Court had said in 1981 that it could be constitutional for it to be gender specific).

The overall point is that gun ownership in earlier times has occurred in the context of a personal responsibility to be able to use them properly to help defend the community against real enemies.  The far right today (the “Doomsday Preppers” crowd) sometimes sees it that way – that every person ought to share the responsibility of community defense.

It’s good to remember that many National Guard and reservist enlistees have served multiple “stop loss” tours in Iraq and Afghanistan, almost as if the military still had a back-door draft.

The link for the Times review is here

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