Sunday, August 30, 2015

Are We Actually Wiser than the Founders?

To venerate the Founders to the point of denying errors in their judgments, or injustices in their actions, serves no good purpose.

Jefferson, Washington, and others owned slaves. We know that this was a moral wrong. In fact, we know that Jefferson and Washington both understood this point. That leaves us in the position of understanding that they made a choice to justify the ends -- development of their own landed estates, finding a ground on which the varying interests of the newly independent States would still permit the formation of new Nation -- while deploying wrongful means.

Still, the genius in their words, their actions, is evidenced by the fact that America is the longest-lived constitutional republic in the world. So, admiration of their words and work is warranted, but is tempered by recognition of their human failings.

As we approach another election season, a variety of "hot-button" issues allow us insight into the thinking of various candidates. That insight, in turn, allows us to compare those candidates with the Founders, and draw what conclusions that we may.

Hillary Clinton and Martin O'Malley, two of the three announced candidates for the nomination of the Democratic Party, have positioned themselves well as proponents of new and additional legislation to address gun crimes in the United States.

Hillary Clinton, in a recent campaign stop, as reported by CNN, staked out her claim as the President that would accomplish the necessary task of winning the "gun control" battle:
"We have got to do something about gun violence in America. And I will take it on," Clinton said. "It's a very political, difficult issue in America. But I believe we are smart enough, we are compassionate enough, to figure out how to balance the legitimate Second Amendment rights with preventive measures and control measures so that whatever motivated this murderer who eventually took his own life, we will not see more deaths, needless, senseless deaths."
Oddly, for a candidate opposed to the use of guns to solve problems, she has adopted a violent motif for her campaign website, casting her campaign themes as a "fight." Her major motif is "The Four Fights."

FDR liked the number four as well. In his day, with a broken economy, growing tyranny in Europe and Asia, he still did not stoop to portraying efforts at change, even progressive transformation, as a battle or a fight. Instead, he spoke of the Four Freedoms. How different are Democrats now, and Hillary at the front, making her policy initiatives "fights." By transforming engagement about policy into "fighting," she has, of course, made those who oppose her views, the "enemy." I certainly hope the two term bath of divisiveness given to us in Barack Obama is not extended a single day under that used up windbag's attempt to create energy by declaring war on Americans.

Martin O'Malley's Maryland has restricted gun rights literally since its founding. In fact, one argument made in defense of the gun restrictions that the Supreme Court overturned in the District of Columbia v. Heller case was that, because the District of Columbia was carved out of Maryland, that State's historically restrictive laws meant that DC residents had never had an unfettered right to keep and bear arms.

In the wake of the Charleston, South Carolina church shooting, candidate O'Malley sent an email to his supporters. He wrote:
I’m pissed that after an unthinkable tragedy like the one in South Carolina yesterday, instead of jumping to act, we sit back and wait for the appropriate moment to say what we’re all thinking: that this is not the America we want to be living in.
O'Malley bragged:
I proudly hold an F rating from the (National Rifle Association), and when I worked to pass gun control in Maryland, the NRA threatened me with legal action, but I never backed down. What we did in Maryland should be the first step of what we do as a nation.
Finally, O'Malley pitched a three point plan to further restrict gun rights:
A national assault weapons ban. Stricter background checks. Efforts to reduce straw-buying, like fingerprint requirements.
Bernie Sanders, the third announced Democratic candidate, and Hillary Clinton's stalking horse, has a mixed record of voting on gun control measures in Congress. Sanders has reacted to recent shootings and questions from media in a way suggestive that he will make pursuit of further gun legislation a feature of a Sanders presidency:
I do not accept the fact that I have been weak on this issue. In fact, I have been strong on this issue. And in fact, coming from a rural state which has almost no gun control, I think I can get beyond the noise and all of these arguments and people shouting at each other, and come up with real, constructive gun control legislation which most significantly gets guns out of the hands of people who should not have them.
See how his basic instinct is not to be seen as "weak on this issue"? And, of course, he voted to ban the sale of guns that look dangerous (the assault weapons ban), and he voted to ban possessing and using magazines with more than 10 bullets, so that a woman, trapped in her home and being assaulted by a gang of would-be rapists and murderers would be required to reload and reload to protect herself. The NRA has given Sanders a lifetime grade of D- on gun rights.

No real surprise is to be discovered in any of this information. These are candidates for the Democratic nomination. Of course they would support limiting the right to keep and bear arms. Of course Governor O'Malley pushed legislation in Maryland to require those that exercise the right to keep and bear arms to be fingerprinted as a precondition to the exercise of the right. For the Democratic Party, the fact that the "right to keep and bear arms" appears in the Bill of Rights is, at best, an anachronism, a throwback to the uncertain and unsettled times of our Nation's founding.

The right of the People to keep and bear arms, the Framers of the Constitution expressly concluded, was "necessary to the defense of a free State[.]" Moreover, the conclusion that the amendment was a necessary component of the federal Constitution plainly indicates that the danger at issue was one that would come, if it did, from federal encroachments. If the People of individual States were concerned that States would interfere with their right to keep and bear arms then the amendments would be to State Constitutions (many of which expressly guarantee the right).

The source of the dangers addressed in the Bill of Rights was the federal government. Episcopalians in Virginia no more wanted a federal government that could establish Presbyterianism as the National religion than did Baptists in Rhode Island want a federal government that could establish Episcopalianism as the National religion. Antifederalists in Virginia and the Carolinas no more wanted a federal government empowered to silence their speech than did Federalists want a federal government empowered to silence theirs.

The Founders did not stumble across the body of rights sheltered in the Bill of Rights. These particular rights -- religious freedom, freedom of speech, press, petition and assembly, rights against warrantless searches and seizures, rights to "due" (appropriate) legal process in criminal proceedings, rights to be tried by a jury of one's peers, and rights to the ownership and use of firearms against tyrannical government -- were the very ones violated by the Crown and Parliament. Those rights were the ones that were understood as being among the natural rights of men. Alexander Hamilton, in the Federalist No. 84, laid out the argument that iterating a Bill of Rights would serve only to limit the larger body of rights natural to men. He noted that New York, for example, did not have a Bill of Rights in its State Constitution. He also argued that the English Bill of Rights actually served as a boundary of the rights of free men, and that, in the same way, the provisions of Magna Carta ceded broad swaths of power to the Crown, reserving only certain identified rights to the Barons and the Crown's subjects.

Hamilton's view nothwithstanding, James Madison eventually agreed to the compromise demanded by anti-Federalists, that if the Constitution was to be ratified it should be supplemented immediately thereafter by the express adoption of a Bill of Rights. In fact, in the first Congress following the ratification of the Constitution, James Madison managed the House legislation that eventually proposed the Bill of Rights, including the amendment guaranteeing the right to keep and bear arms.

James Madison is often touted for his express concerns about Establishment of Religion and religious freedom. In particular, strict separationists are fond of citing to a set of writings, the "Detached Memoranda." Madison's writings there, for example, are cited and quoted because he concludes, nearly thirty years after proposing the Bill of Rights, including its provisions for Free Exercise of Religion and against the Establishment of Religion, that the appointment of chaplains for the Houses of Congress violates the Constitution and is inconsistent with principles of religious freedom. So, when it comes to strict separation of church and State, James Madison is, for lack of a better way to put it, a "latter day saint."

Yet the same Madison that thought that chaplains in Congress violated the Constitution and the principles of religious freedom also thought a strict guarantee against interference with the right to keep and bear arms was necessary to guarantee what he thought should be considered a fundamental maxim:
The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.
Those who would canonize and lionize Madison for his separationist views go quiet on Madison when the question is arms. Madison wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
Madison's views of the necessity of preserving a robust right to keep and bear arms was not singular.

Thomas Jefferson accumulated a collection of thoughts and writing on questions related to government. The following quotation appears in his Commonplace but, while it is often attributed to him, he recorded these ideas from the text of an Italian author:
[Consider] that legislator has false ideas of utility who considers particular more than general convenienc[e]s, who had rather command the sentiments of mankind than excite them, who dares say to reason, 'Be thou a slave;' who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it. 
The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.
Lest it be supposed that this quotation in Jefferson's Commonplace was merely a copy book exercise in handwriting, Jefferson's thoughts on the right to keep and bear arms are known. In his proposed draft of a Constitution for the Commonwealth of Virginia, Jefferson included this provision:  "No Free man shall ever be debarred the use of arms." While that version of that language was not adopted, Jefferson's inclusion of it illuminates his thinking on the subject. More directly, Jefferson is well known for his prospect that "the tree of liberty be watered" by the blood of tyrants and patriots. His observation came in a larger letter to William Smith, in which he reflected on the fact that Shay's Rebellion was not, in his view, an entirely evil matter. His view reflected his thinking that those in authority ought to be reminded of the essential powers of the People:
What country before ever existed a century & half without a rebellion? & What country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.
Alexander Hamilton, though he died in a duel, understood the importance of the individual right to bear arms in maintaining the balance of power against an over reaching tyranny. On this point, he wrote in The Federalist No. 28:
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. 
[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.
Many, many more evidences in the writings of those that framed the Constitution and the amendments that came to be the Bill of Rights demonstrate that the Second Amendment's topic, the right to keep and bear arms, was not an add on or a tag along, but understood to be an important tonic in the preservation of liberty.

Now, today, between Hillary Clinton, Martin O'Malley, and Bernie Sanders, Democrats face a choice of three candidates none of whom respect the reasoning or conclusions of those very Framers. And that brings me back to those opening thoughts.

Yes, the Framers were human. Yes, they exhibited frailties of character not much different than are common today. Certainly slavery is a weighty charge against honor and decency. One might say the same, however, of other policy choices that are weighed in lives, such as abortion, authorizations for the use of force, confiscatory taxation.

In the main, it occurs to this observer that these candidates' thoughts on the right to keep and bear arms warrant small regard. Because they mock as some distant memory that imminent threat to liberty that tyranny constituted in the Revolutionary era, because their party was, itself, responsible for the armed reign of terror known at Ku Klux Klan, and its depredations against the newly freed slaves and their Republican patrons, because they are forever aligned with devotion to government rather than liberty, they are simply without sufficient indicia of reliability.

No, in this respect, we are not wiser than the Founders.