Squashed

A blog of politics, law, religion, and the tricky spots where they collide.

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According to Ben Labaree’s history, The Boston Tea Party, the Founding Fathers were actually pretty appalled at the destruction of the tea.

According to Ben Labaree’s history, The Boston Tea Party, the Founding Fathers were actually pretty appalled at the destruction of the tea.

Guns and the Constitution

We’re all familiar with the language of the 2nd 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.

Needless to say, there is some question as to how we interpret that today. After all, we interpret “freedom of speech” in the 1st Amendment to include types of communication that didn’t exist when the text was written. Is there any logical check on the 2nd Amendment?

How about these clauses from Article I s. 8 in the actual body of the Constitution listing things that Congress shall have the power to do:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

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

At the time the Constitution was drafted, a standing army was not envisioned. Instead “the Militia” was going to suppress insurrections and repel invasions. In other words, the “militia” looks a whole lot like a National Guard. And we’re sort of ignoring that army appropriation thing. The Army has more or less taken over the role intended by the militia.

The idea that the well regulated Militia was intended to be a safeguard against tyranny is fantasy. In the Constitution, the Militia suppresses the insurrection. The text of the Constitution doesn’t support an unlimited right to private arms for private purposes.

Beyond the Second Amendment

I’m not a gun guy. I don’t hunt. I don’t go to shooting ranges. I don’t really get either of them. In other words, I’m not the guy we want entrusted with crafting a balanced gun policy. The only thing I’ve got to contribute to the conversation is to ask you all to stop getting distracted by the Second Amendment.

The Second Amendment, like the rest of the Constitution, was written by a remarkable group of people at a remarkable time who got a lot of things very right and a lot of things very wrong. If we’re looking for inherited wisdom on gun control, we’re no better off turning to the founders than we would be turning to, say, Bill Nye the Science Guy.

The Second Amendment puts some limits on what laws we can have and how they need to be implemented. It has no effect on what a sound gun policy for today is. Put simply, a sound (or unsound) gun policy would be just as sound (or unsound) with or without the Second Amendment. And unless we turn to the guys who brought us the three-fifths compromise as some kind of absolute moral authority, the Second Amendment is a legal—but not a moral—limit. The Second Amendment might help or hinder a specific policy proposal—but it won’t make it better or worse.

Rights are not free

My conservative friends tell me that something cannot be a right if it imposes a cost on somebody else. They recognize a rights to speech, religion, and weapons for those who can afford them. They deny rights to food, shelter, and healthcare for those who can’t pay for them. The “right to life” is limited to a right not to be killed.1 While they believe it would be awfully nice if society provided for the most vulnerable, they do not believe that society has an obligation to ensure the most vulnerable are provided for. And they certainly don’t believe that our shared humanity entitles the most vulnerable to food, shelter, or healthcare.

This view would deny the existence of some of our most cherished rights.

  • The right to vote
  • The right to a fair trial
  • The right to counsel
  • The right to petition your government
  • The right to due process of the law
  • The right to an education
  • The right to safety from violence
  • The right to equal protection of the law

These trials and elections aren’t free. Education certainly isn’t free.2 We sacrifice some of our most cherished rights if limit our discussion about rights to those rights that do not impose any financial cost (except paying a few more police officers to protect us from people who don’t like our odious opinions, arming those police officers more thoroughly to protect them from all the guns we’re slinging around, and so on).

"The only rights that count are free" is a radically regressive stance.


  1. Some exceptions apply. Offer not available in all countries. 

  2. Yes, some conservatives would like to switch to a voucher system and eliminate public schools all together. A private system paid for primarily by public funds would look a lot like the educational equivalent of a single-payer health system. Whether you have a right to a voucher or a right to public school, you have a right to an education at public expense. 

Is the Libyan intervention Constitutional?

Short Answer: Yes.

Slightly Longer Answer: For the most part. Only sort of. It doesn’t really matter.

The U.S. Constitution is pretty clear that the President is the civilian leader of the Militery.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

In light of that, there aren’t a whole lot of limits on that power. Of course, the power would be limited if we didn’t have a standing army or if the militia had not been called up.

Except that Congress gets to declare war:

The Congress shall have Power to … declare War….

Also, Congress can check the President by not giving him an army, navy, or by not calling the militias into service.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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 sure looks like the drafters didn’t intend for the U.S. to have a standing army. Instead, it appears that states were intended to maintain individual militias. The navy, of course, is a whole lot more difficult to dismantle every few years. Warships can’t just go home and be yeoman farmers. If the President doesn’t have an army, he can hardly abuse its use. And … presumably they wouldn’t call up an army just to have it sit around and colonize people. Right? The Continental Army was disbanded and that was the end of a standing national army … for about fifteen years.

We don’t even declare war anymore. We just have a massive military to hang out and do whatever militaries do. Congress has effectively ceded that particular check and balance. Except that for The War Power’s Resolution. This resolution essentially tells the President that he’s supposed to consult Congress, to the extent possible, before getting into foreign military involvement, that he needs to notify Congress (in writing!) within forty-eight hours of starting such an entanglement, and that the military involvement can only go on for sixty days (plus a thirty-day withdrawal) without an authorization for the use of military force from Congress. In this case, further congressional consultation was not possible because time was critical. Congress was notified. And we’re no where near that sixty day mark. Obama is okay under the War Powers Resolution.

Of course, even if he wasn’t, it’s not clear that the War Powers Resolution is actually constitutional. It represents a pretty reasonable compromise, though, so it’s a good fiction to pretend that it’s binding. It also avoids a constitutional crisis—which is a big point in its favor.

Is the Libya intervention Constitutional? Do triangles dream? If the question even makes sense—we’re about two hundred years too late to worry about it. We’re way past the vision of the drafters. The founders are dead, guys. We’re on our own.

Should we have separation of church and state? Y/N (Check One)

If only it were that easy. Efforts to make the church into the state or the state into a church tend to end very, very badly. But, to the extent that government is made up of people and people have religious convictions (or non-convictions). They don’t check their beliefs at the door when they take up office. The “high wall of separation” between church and state makes about as much sense as a high wall of separation between the personal and the political. The two are inextricably connected. Complete separation is impossible.

The court cases on the topic bear this out. There have been a number of attempts to definitively sort out what violates the establishment clause and what is acceptable. A few approaches have evolved—but taken together, the precedent is not a whole lot more clear than, “Guys, this is a tough issue. Try not to respect everybody’s freedom of conscience and keep the books separate as much as possible. And whatever you do, don’t be mean about it.”

Sen. Lindsey Graham (R-S.C.) announced Wednesday night that he is considering introducing a constitutional amendment that would change existing law to no longer grant citizenship to the children of immigrants born in the United States.

Politico

Because apparently the 14th Amendment went too far with the whole abolition of arbitrary boundaries thing …

"Where in the Constitution does it say…"

Popular discourse about the United States Constitution has gotten a bit loopy. The proponents of this absurdity revere the Constitution like a holy text, but interpret it with the selective strictness generally reserved for poorly-written bylaws. In the panoply of Constitutional interpretation, there is room for a bit of silliness, but the smug self-righteousness of those who have no idea what they’re talking about gets pretty grating. Unconstitutional? You keep using that word. I do not think it means what you think it means.

But first, let’s answer the question of where the constitution allows Congress to do whatever somebody says Congress doesn’t have the power to do. Article 1, Section 8 ennumerates (non-exhaustively) certain powers of Congress. The commerce clause, which is the most common basis for laws, is in there. So is the necessary and proper clause, which says that Congress can make all necessary laws to execute any of its goals. While the judicial history of any of this is long, varied, and interesting, but the short answer is that Congress can do most things—except a few things that it can’t.

I don’t mean to say that their is a 100% probability that the Supreme Court will find the entirety of a bill as sweeping and innovative as the healthcare reform bill within the power delegated to Congress by the COnstitution. Weirder things could happen. I once saw a snowstorm in July. But I don’t tell my friends to wear their snow suits when watching Independence Day fireworks. That would make me insuffarable.

It’s a big country—and there is space for people to believe a lot of different things. Some Americans are Scientologists. Some Americans believe the Constitution is a dead thing they can fit in their pocket. They’re entitled to their views. But they’re not entitled to be taken seriously.