He went to the big armory in the sky a few years ago, but on the evening of June 26, here in Petrolia, I could almost hear the joyful salvos that my neighbor, Curly Wright, half a mile down Conklin Creek Road, would have loosed off into the hillside the other side of the Mattole.
June 26? For millions of Americans the political highpoint of 2008 is now behind them. The precise day is forever inscribed in their hearts as one of glorious ratification of one of America’s core freedoms: the day the U.S. Supreme Court for the first time affirmed by a narrow majority of 5-4 the Second Amendment to the U.S. Constitution, “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.”
The last time Joe Paff (co-pilot of the indispensable Gold Rush Coffee) and I visited Curly, then in his early 80s, his strict constructionist reading of the Second Amendment was visible in every cranny of his home. Without twisting my head as I sat on the couch I think I counted around 30 long guns disposed about the premises. Tucked between the cushions of the couch itself and in a planter or two there were small handguns available for swift deployment. Curly was an unregulated militia all on his own.
The Supreme Court’s decision was a frightful blow to the gun controllers. “This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country,” wailed the New York Times in an editorial. “A frightening decision and a return to the days of the Wild West,” said Mayor Richard Daley of Chicago, a city to which gunfire has been street Muzak for many decades.
The Court’s decision was written by the court’s peppery ultra-conservative, Justice Antonin Scalia, who became positively lyrical in his paean to the handgun: “There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
Thinking of Curly’s well-defended home, I remain astounded by the tiny number of weapons allegedly seized by the feds in their recent execution of 29 search warrants in our county, commencing on June 24. The 450 intrepid agents from “Operation Southern Sweep” (mustered from the DEA, FBI, BNE, and other heavily armed detachments of the sovereign power, like the Post Office Inspectors) managed to dredge up a mere 30 firearms in the course of their operations.
Only 30 firearms seized in SoHum! Mr. McGregor probably had better home defense against Peter Rabbit. If that’s all that a passel of alleged cultivators can muster in SoHum, heaven help us when the Chinese declare World War III. They could land at Shelter Cove, and scythe their way through the woods to Garberville with only token resistance from pacifists bunkered down in their plastic greenhouses flourishing watering cans. The red flag would be flapping over Willits by sundown, and San Francisco right down 101 waiting to drop into the hands of the Commie-Capitalists like a ripe plum.
Oddly enough, considering the endless political battling over gun rights, the nation’s highest court has only once before ruled on the citizens’ inherent right to bear arms, and this was in the Roosevelt era. Gun control was one of the prime goals of the New Deal, partly as a backlash from the Tommy Gun era of Prohibition and the Roaring Twenties; also because in those distant days there was a very large and militant left, of which FDR was afraid. The New Deal was a desperate attempt to stave off much more far-reaching challenges to Business-as-Usual.
Cunningly, FDR’S strategy was to attack gun rights not by a head-on assault on the Second Amendment but by the devious but always deadly route of taxation. Taking weapons across state lines and even transferring ownership became costly activities. The Supreme Court affirmed this in 1939, simultaneously emphasizing that the Amendment confirmed the collective rights of a militia, not individual citizens, and that the arms did not include sawn-off shotguns or assault weapons.
For the next half century the gun controllers pushed steadily forward, given helpful shoves by the assassinations of the Sixties, Reagan’s narrow escape and the crack wars of the Eighties. The Democratic Party, listening particularly to its liberal, urban and feminine base, made gun control a major plank. The recoil came in 2000, with Al Gore’s defeat at the hands of George Bush. Guns, not Nader, were a prime factor in that narrow loss. Gore’s endorsement of gun control cost the Democrats Virginia, Tennessee, Arkansas, Colorado and the mountain states. The Democrats began to sideline the issue. The gun lobby weathered the crises of school shootings at Columbine and Virginia Tech. The Bush presidencies saw membership of the Court swing steadily to the right.
Europeans, snootily aghast at America’s 50 million households holding about 250 million guns,usually miss two important points. “Home defense” is a phrase with profound reverberations, as Scalia emphasized strongly in such paragraphs as the one cited above. And the gun lobby has been successful in anchoring their cause in the notion of a basic “freedom,” in an era when Americans correctly feel that freedoms — against unreasonable searches and seizures, or to a speedy trial — are being relentlessly eroded by Government.
Looking for silver linings the day after the decision, gun controllers pointed to Scalia’s acknowledgment that cities and states can still pass laws denying weapons to the unsuitable, ban them altogether near schools, prohibit bazookas on front lawns and so forth. But, in response, the exultant gun owners point to the all-important footnote 27 in Scalia’s decision, declaring flatly that laws impinging on the Second Amendment can receive no lower level of review than any other “specific enumerated right” such as free speech, the guarantee against double jeopardy or the right to counsel. June 26 truly did open a new page in American judicial history, as politicians quickly recognized.
In contrast to the New York Times’ editors, the Democratic nominee for the presidency, Barack Obama, took a modulated position but one which prudently avoided any whisper of criticism of the Court, or of Scalia. Obama is from Mayor Daley’s city, but in contrast to Daley he emphasized that the Court had indicated that prudent restrictions on gun ownership are not at risk. (Of course they are, and indeed are already the object of legal challenge in Chicago.) But his voice was at its most forceful when he said that he entirely agreed with the Court that Americans have the right to bear arms. The National Rifle Association is raising the prospect that Obama, as President, might sponsor legislation to nullify the Court’s decision. Don’t believe it. The NRA needs a threat to keep the membership high and the donations rolling in. Obama, as candidate or president, is not stupid. He’ll leave the gun issue lie. That particular liberal cause will be on the shelf for many years to come.
A last word of advice to the Chinese: Stay away from Shelter Cove.Send in your Airborne commandos and set up base at Arcata Airport. First order of business: Finish the baggage carousel whose snail-pace construction has made Arcata Airport the envy even of the masterminds who have kept San Jose International Airport under permanent construction for the past 30 years. The Chinese built Beijing’s new airport, five times the size of Heathrow, in less time than it took British Airways to construct Terminal 5, whose launch on May 27 caused the largest baggage jam in southern England since Madonna settled in the UK.
Alexander Cockburn coedits the website and newsletterCounterPunch, writes a column forThe Nation, and writes a syndicated column carried by several newspapers. He has lived in Petrolia since 1990. He can be reached at alexandercockburn@asis.com.
This article appears in Return to Black Bear.
The Supreme Court affirmed this in 1939, simultaneously emphasizing that the Amendment confirmed the collective rights of a militia, not individual citizens, and that the arms did not include sawn-off shotguns or assault weapons.
Um…that’s not entirely accurate.
The Miller decision did not address the collective vs individual right aspect.
Had the court decided that only members of an organized militia were endowed with the right to keep and bear arms, the only question then would have been "is Miller a member of a militia?" That question was never even asked. It was understood at the time (as it is now by people who actually understand the concept of a "militia") that EVERY able bodied male was a member of the militia by default.
What the Miller decision held was that the the firearm in question had no military use and, therefore, was not protected by the Second Amendment.
In other words, the court did NOT find for a "collective right" (an oxymoron if I’ve ever heard one) reserved only to members of an organized militia. It found that the WEAPON must have some military use in order be considered among the "arms" protected under the Second Amendment.
"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."
…
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."
–US vs Miller 307 U.S. 174 (1939)
What the Miller decision held was that the the firearm in question had no military use and, therefore, was not protected by the Second Amendment.
Actually, in retrospect, THAT’S not even an accurate summation of the decision.
The court held that no evidence had been presented to them to demonstrate that a short barreled shotgun had any military utility.
IN THE ABSENCE OF ANY EVIDENCE tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, WE CANNOT SAY that the Second Amendment guarantees the right to keep and bear such an instrument.[emphasis added]
The court didn’t say absolutely that the shotgun had no military utility, just that no evidence had been provided to them to demonstrate such.
That’s not incredibly surprising considering that the Miller side didn’t even bother to argue their side of the case. Miller’s lawyer didn’t even bother to file a brief, let alone present an oral argument.
It’s pretty easy to win when you have no opposition.
I find it interesting that, in passing the laws that place restrictions on things like short barreled shotguns, the military is exempted.
If such an arm has no military utility, why did they bother to exempt the military from the restrictions? Hmmmm.
Either way, the point remains that the court did NOT find for a "collective right" (that makes me cringe to write, even when putting it in quotes. The concept of a "collective right" makes about as much sense as "dry water"…the terms are mutually exclusive).