If Soldiers Are Quartered, Only Militias Will Be Regulated

Ben Pollock, leaving a big meeting, October 2010

The author, leav­ing a big meet­ing, 2010

The Sec­ond Amend­ment has had a free ride for too long. Sure, laws and reg­u­la­tions on firearms pur­chases have been devel­oped from it, but numer­ous events indi­cate their effec­tive­ness is minimal.

Now that it’s 72 hours after a 20-year-old whacko killed his gun-loving mother and took her guns to a nearby grade school, killed 20 young chil­dren, six adults then shot him­self in the head, we pinkos (as opposed to the red­dies and the blue­sers) should admit that maybe New­town couldn’t have been pre­vented. Mama Whack owned the weaponry, appar­ently legally. Twenty Whack’s issues prob­a­bly didn’t look that threat­en­ing, before Dec. 14.

We can’t arrest some­one before a crime; Minor­ity Report is sci­ence fic­tion. For a few more years.

But quickly and deci­sively revis­ing who gets to pos­sess which kinds of arms can have an impact on the enraged  atti­tude of “I’ll Show Them.” Other coun­tries have whackos — Nor­way and China are recent exam­ples — but with Amer­ica, sec­ond place is no con­test. The expla­na­tion: Other coun­tries con­trol weapons more stringently.

Revis­ing a men­tal health care sys­tem will take longer than a cou­ple of months. Main­stream­ing the emo­tion­ally dys­func­tional decades ago was intended to curb cruel, inef­fec­tive prac­tices. Exchang­ing one extreme for the other causes its own fail­ures too often.

In short, let’s not fight the last war.

We did not stop Twenty-Whack or the other dozens of Yan­kee psy­cho shoot-em-ups of recent years.

Let’s plan for the next war.

We start by set­ting fire to the Straw Man, in this cir­cum­stance, the Sec­ond Amendment.

Here’s the old sen­tence itself, straight from the quill pen of Lit­tle Jimmy Madison:

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.”

Not even the First Amend­ment has had the same kind of lib­erty over the cen­turies: Courts give free­dom of reli­gion, speech, press, peace­ful assem­bly and peti­tion a nearly lim­it­less berth. But these tol­er­ate some boundaries.

Con­gress shall make no law respect­ing an estab­lish­ment of reli­gion, or pro­hibit­ing the free exer­cise thereof; or abridg­ing the free­dom of speech, or of the press; or the right of the peo­ple peace­ably to assem­ble, and to peti­tion the gov­ern­ment for a redress of grievances.”

What are the con­straints on the First Amend­ment? There are any num­ber of rel­a­tively spe­cific lim­its and expan­sions (watch the dou­ble neg­a­tives, legal bea­gles), such as the recent Cit­i­zens United case allow­ing cor­po­ra­tions free­dom of speech with which to sup­port or vil­ify polit­i­cal candidates.

Yet there remains a sweep­ing Free­dom of Speech imped­i­ment, and a com­pa­ra­ble stum­bling block needs to be set before the foot of the Sec­ond Amend­ment. “FIRE!”

Nearly a cen­tury ago the U.S. Supreme Court ruled unan­i­mously that the First Amend­ment does not pro­tect against mali­ciously caus­ing a panic.

Amer­i­cans do not have the right to cre­ate a “clear and present dan­ger,” said Jus­tice Oliver Wen­dell Holmes Jr., writ­ing for the court. His sen­tence: “The most strin­gent pro­tec­tion of free speech would not pro­tect a man falsely shout­ing fire in a the­ater and caus­ing a panic.”

The Con­sti­tu­tion and its Amend­ments com­prise a liv­ing doc­u­ment. This case, Schenk v. United States, seems overly lim­it­ing to civil lib­er­ties. In fact the rul­ing was over­turned 50 years later in Bran­den­burg v. Ohio. But the “shout­ing fire” exam­ple holds.

The Con­sti­tu­tion gains its strength from being recon­fig­ured for each era. That’s why the Third Amend­ment has been ignored:

No sol­dier shall, in time of peace be quar­tered in any house, with­out the con­sent of the owner, nor in time of war, but in a man­ner to be pre­scribed by law.”

If there is a limit to extra­or­di­nar­ily reck­less or mali­cious speech, in caus­ing pan­ics or riots, why can’t a lib­erty lov­ing repub­lic con­trol the vio­lent pos­si­bil­i­ties of reck­less or mali­cious people?

Have you noticed? I am no lawyer.

But our nation can’t keep hand­i­cap­ping itself with laws that don’t actu­ally exist. State Guard units have nada to do with own­ing firearms for marks­man­ship, per­sonal pro­tec­tion and for hunt­ing. The best that 18-century guns could fire was three shots a minute. Since then, the num­ber of peo­ple hurt and killed by gun mishaps is heartbreaking.

We can help the irra­tionally vio­lent bet­ter than we have been. (By help I mean hin­der them.) We can con­trol weapons to a greater degree. We must.

Copy­right 2012 Ben S. Pollock

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