2nd Amendment and Our 2nd Principle

2nd Amendment and Our 2nd Principle
Rev Douglas Taylor
September 25, 2016

A few years back I fell into a conversation with a Gun enthusiast from another congregation at a district meeting of Unitarian Universalists. This is unusual because “Unitarian Universalist” and “gun enthusiast” are not descriptors commonly used for the same person. After about few minutes stopped and said, “Most UUs have ended their conversation with me by this point.” I can smell a tolerance test when I’m in one. Plus, I have found that it is not true to say all UUs do not like guns. And, I learned a lot about guns over that next half hour.

While I suspect it is true that the majority of Unitarian Universalists are in favor of sensible gun laws and restrictions, we might be surprised at how many are also gun owners. The caricature UU on this issue looks like me: I don’t own a gun, I’ve never fired a gun, I have never been given instruction on how to fire a gun, and I have no wish change any of that, and if I were told there was a gun in my house I would feel less safe rather than more safe. But I am not anti-gun. Or, more accurately, I am not anti-gun for society, only for myself.  We Unitarian Universalists are more diverse on the issue of gun rights and gun regulations than we might think. I know a number of UUs who are hunters or shoot for sport or keep guns for home protection.

I don’t know much about guns; but I do know a lot about people, and about the group dynamics side of politics and policies. This is why I am preaching about the 2nd amendment. Not because I know a lot about guns, and think my religion and my opinion on gun violence are related. But because I know a lot about people, and think my opinion about gun violence has been informed by my religious values.

Unitarian Universalism is guided by 7 Principles, the 2nd of which is to affirm and promote “justice, equity, and compassion in human relations.” My perspective on gun rights and gun regulations is most informed by compassion. To what degree does the 2nd Amendment allow for justice and equity? Indeed, the heart of my argument around the 2nd Amendment is based in the values that ground the entire Constitution. It sounds something like this:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.  

[And for fun, listen to this clip from School House Rock about the Preamble: https://www.youtube.com/watch?v=yHp7sMqPL0g]

The top goal is to create a more perfect union. I find it is important to start this conversation about one of the amendments in the context of the full Constitution. A key element of context worth lifting up is that the Constitution and the first ten amendments (the Bill of Rights) are written in part as a reaction against monarchical government.

In the Federalist Papers, the founders outlined that the standard ‘Bill of Rights’ from other countries was a list of things the king offered to the people. In our case, the Bill of Rights is actually a list of things ‘we the people’ are not surrendering to the government. Another way to frame that is to say the Bill of Rights is not a gift to the people it is a leash to the government.

Remember the Declaration of Independence:

We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.  -Thomas Jefferson

This is very much in keeping with our religious roots. Our human dignity and worth is pre-existing and natural. It is not granted, won, earns, bestowed, or gifted by God or country. We are, according to our government’s founding documents, each born with all our human rights. This concept aligns with our common religious belief about human nature as Unitarian Universalists.

The Bill of Rights is written in that difficult dance of language between the needs of the individual and the needs of the ‘more perfect union’ the individuals are striving to create. We debate whether the 2nd Amendment is about an individual’s right to own a gun or a militia’s right to be populated by armed and trained citizens. The tricky answer, as we heard in the reading (The Second Amendment, A Biography by Michael Waldman), is “both and neither.” (p xiii)

And here is the thing about militias. When the Constitution was written, the word ‘militia’ meant something it no longer means today. There was no standing army at the time of the Constitution and the founders specifically did not want a standing army. They used the word “militia” instead of the word “army” on purpose. They were talking about an armed force but they didn’t want to use the word ‘army’ because that word had structural implications they were trying to avoid. The founders wanted the Minute-men. They wanted citizens, not professional soldiers.

Our current police force and armed forces (Army, Navy, Airforce, and Marines) serve the same purpose today as a well-regulated militia served back in the late 1700’s. On top of that we have the National Guard – which really is the most analogous contemporary institution to what the founders were talking about.

A deep part of why the founders wanted no standing army was to stop the national government from attaining that level of power. They had seen the atrocities committed in other countries when the government ordered its soldiers to crack down on its people. They felt that a state militia would not commit that kind of violence against their own neighbors at the orders of their government, whereas the professional police officer or soldier more easily would. This is the tyranny piece. This is the part in which the founders wanted the citizens to have the capacity to throw off a tyrannical system.

So here is the thing: the 2nd Amendment gun rights groups and militias are right about the founders’ original intent. We are supposed to be able to arm ourselves with serious weapons as a firewall against tyranny. They’re right. The problem is they’re too late. The militias are irrelevant. They don’t have tanks, war planes, missile launchers, nuclear warheads, satellite surveillance systems, chemical weapons, or weaponized drones. All they have are AR-15s, AK-47s, and a few illegal machine guns. They don’t stand a chance of ‘throwing off’ the United States government. They wouldn’t last an hour against the National Guard and Armed Forces if things got serious.

For example, on the one-year anniversary of the shooting of Michael Brown, August 2015, an armed group called the Oath Keepers arrived in Ferguson to monitor the demonstrations. Missouri is an ‘open carry’ state. The Oath Keepers are a constitutionally guided militia, meaning they have formed themselves as a militia as outlined in the constitution and its amendments – although they don’t seem to be state-based and they do carry semi-automatics rather than muskets, so there are some concessions to modern times.  The Oath Keepers in Ferguson were white. The black residents and protesters did not trust this group of heavily armed white outsiders, and St. Louis County Police Chief Jon Belmar went of record as saying they were “both unnecessary and inflammatory.” Neither side wanted the Oath Keepers.

After a few days the small group left town. They had no lasting impact. Interestingly, the first night the Oath Keepers were on site walking around with their assault weapons on full display, three black men were arrested under the suspicion that they might have handguns. Missouri’s ‘open carry’ law must only work if you are also ‘openly white.’ The Oath Keepers had strongly urged the black protesters to arm themselves (à la the 14th amendment) with weapons as well as facts – which just shows how tone deaf they are if they think that wouldn’t escalate things fast.

The only way for the 2nd Amendment militias to go against a police department or the National Guard is through posturing. Do the militia people actually think they can tell the police to stand down? Militias are anachronistic and ineffective. They may be constitutionally correct, but they are too late. They are too late and they irrelevant because the government already has a standing army and a police force. The argument that the 2nd Amendment should be interpreted today as a support for non-governmental militias is deeply flawed given the reality we are living in.

The other major interpretation at play is that the amendment is limited to personal gun ownership. Interestingly, all the laws and judicial decisions over the past several decades have been focused on this interpretation. So let us grapple for a few minutes with the constitutional right of an individual to keep and bear arms.

One of the difficulty I discovered in exploring this is the vague language of the current laws and therefor the current conversation about gun regulation. There are Automatic, semi-automatic, and assault weapons in the mix. A fully automatic weapon is a ‘machine gun.’ It is a weapon used in the military that was made (mostly) illegal for private citizens in the 1930’s. Think about ‘gangsters’ with tommy guns. That’s the type of weapon the ban targeted. It is a weapon that when you pull the trigger, it continues to fire until the ammunition has run out. A regular gun – a pistol or rifle – when you squeeze the trigger, a single round or a single bullet is fired and to fire a second shot you must squeeze the trigger a second time.

A semi-automatic is like a regular gun in that you squeeze the trigger for each separate bullet, with the addition that they automatically reload. Meaning, you do not need to ‘cock’ the gun before firing a second time. These are, for example, “the AK-47 and AR-15 style rifles.” [Note: in conversation after this sermon I have further learned that nearly all guns and rifles are ‘semi-automatic’ nowadays; which complicates the conversation even more.] They are referred to as ‘assault weapons’ by some people. Unfortunately the 1994 federal Assault Weapons Ban defined an assault weapon by certain cosmetic features, “bayonet mounts, grenade launchers, silencers and flash suppressors,” while remaining completely silent on the essential point: how many rounds per second can be fired.

I am an advocate for Sensible gun control laws. What do I mean by ‘sensible’? I mean the same thing most people mean when they say that: closing the loop holes in gun show and internet sales, increasing the strength of the background checks with a waiting period if that’s what it takes for the checks to happen.

I would love to see a shift away from bans that talk about ‘assault’ weapons as defined by cosmetic similarities to bans that talk about automatic and semi-automatic weapons. The Assault Weapons Ban from 1994 lapsed ten years later and is no longer in effect. New York State’s ‘safe act’ is essentially a stiffer version of that ban. But the Safe Act is still using the flawed “assault weapon” language.

I support semi-automatic weapons being banned but I would also support them being merely registered the way vehicles are registered. [Note: in conversation after this sermon I have further learned that while we have many state laws about licensing and registration, there deeper conversation is about the mentally ill, ex-cons of violent crimes, and people on the terrorist watch list or no-fly list – and a federal version of all this.] To drive a tractor trailer, I would need a different level of training and a different license than was required of me for just a car. We can do the same for guns – the operators of the weapons need certified training and licensing (that’s not new), and even specialized training and licensing for different types of weapons such as the semi-automatics if we’re not going to have an all-out ban. Then the weapons, at least the semi-automatics, need a certain level of registration and inspection the same way our vehicles do.

The debate is not about hunting, not about gun collectors, not about home protection, or even basic gun ownership. It is about the use of a certain type of weapon, demonstrably used in mass shootings – the semi-automatic style weapon, that can and should be regulated or even banned. It is not the 2nd amendment blocking sensible gun laws. The 2nd Amendment doesn’t say anything about semi-automatic weapons.

What does the 2nd amendment have to say about a man’s right to walk the streets of Ferguson with his AR-15 style weapon during a volatile protest against police? Nothing. What does it say in the face of repeated mass shootings done with an AR-15 style weapon? Nothing. What was James Madison thinking about such things when he drafted the Bill of Rights? And why would such a ridiculous question even come up?

It was the late Justice Scalia who introduced the notion of “Originalism,” the judicial doctrine of uncovering the original intent of the founders to resolve today’s problems. I tell you that Originalism is unwise. It is to treat our constitution like scripture, as if the authors were infallible. It is religious fundamentalists who insist on originalism, and they do so because they claim God wrote the document – I’m talking about the bible in that case, not the Constitution. No one is claiming God wrote the constitution or the amendments that follow. Why would we treat the Constitution like scripture? It was a flawed document then and still is. We ought to interpret the document through the light of our present understanding and reality rather than blindly ignoring common sense.

Frank Lloyd Wright once quipped “I’m all in favor of keeping dangerous weapons out of the hands of fools. Let’s start with typewriters.” I submit Wright is correct – the 1st amendment is far more important a weapon against tyranny in today’s context. I have no interest in changing or the 2nd amendment but I will argue for an interpretation that allows for better regulation given the current context, keeping in mind that the full goal is not found in any of the amendments, but in the words and spirit of the Constitution’s preamble. The point in creating the constitution was:

…in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…

The current state of gun violence in our country is a problem that falls in direct opposition to the stated goals of insuring domestic tranquility, establishing justice, and forming a more perfect union. Always remember, our government’s goal is first and foremost to form a more perfect union. We are still working toward that day when each of us can sit under our own vine and we can each live in peace and unafraid.

In a world without end,
May it be so.