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Sunday, December 23, 2012

The Right to Bear Arms and Other Alienable Rights

One of the things I find most frustrating in the discussion surrounding the 2nd Amendment in the last week is the conflation of Natural Rights and the human constructed documents designed to protect them. (Don't click on this link unless you want to read a poorly written exegesis on the inviolate nature of the 2nd Amendment)

I'm not a lawyer or a constitutional scholar, but there are some things that I do know.  One of them is that The Bill of Rights is not inviolate.


The Bill of Rights were not dictated by Yahweh and inscribed on papyrus in the consecrated blood of James Madison. The Bill of Rights was a negotiated settlement between the states in order to make the new Constitution more palatable to the anti-federalists.

The Bill of Rights is vital for our country and is largely what makes our country strong and good, but the rights are by no means sacrosanct.

They are not Human Rights.

Human rights,outlined in the Declaration of Independence, modified from the ideas posited by John Locke, including Life, Liberty, and Pursuit of Happiness are Inalienable.  In the perfect sense they cannot be modified or mitigated by inferior laws or the will of a government and if (or when) a government begins to infringe upon these rights, rather than protect them, we can and should rise up against the oppressive regime.

The Bill of Rights is not a listing of our inalienable rights.   The Bill of Rights is a living document of human construction that attempts to define the limits of government with concern to protecting our rights.  The Rights as they are outlined in our Bill of Rights, are rights of the people on which the government has agreed not to infringe, but they are not Inalienable, they are negotiated terms agreed upon by a people and their government.  They are, in fact, alienable, and are modified and curtailed regularly in order to protect the public good.

To argue the 2nd Amendment protection of the right to bear arms is inalienable is to willfully misunderstand the nature of the intent of the Bill of Rights.

We modify and mitigate the breadth of these amendments regularly.

We place limitations on speech, on religion, on the press, on assembly, and on petition.  

We understand that exigent circumstances abrogate our right to be secure against search.

We negotiate and reinterpret the definition of "cruel and unusual punishment" with regularity in this country.

We've thrown out the first half of the 7th Amendment, saying it doesn't apply to state courts.

The Supreme Court and conservatives in this country are actively chipping away at the 9th Amendment.

It is only the 2nd Amendment which we have decided to be inviolate.  This is just plain fucking stupid.

Oh yeah, and when did we decide that it would be inviolate?  2008.  It was only 4 years ago that the court decided that the 2nd Amendment meant that anybody could have any gun and that the even the states couldn't regulate armaments.  Prior to Heller, the court had been nearly silent on the 2nd Amendment for 200 years, only the 3rd Amendment has less case law.

For consistency's sake, those who want to argue that the 2nd Amendment is inviolate should also take up the mantle for all the other areas in our Bill of Rights where we have gone against the laws of man and nature in order to abrogate our rights.

  1. Jury Trials for all civil cases involving amounts greater than $20 -- Heller says the 2nd Amendment applies to the states, too, so why not the 7th!  -- Universal year-long jury duty for everybody!
  2. Fight for the right of SouthWest Native Americans to use Peyote for religious ceremonies and for Rastafarians to use sacramental marijuana.
  3. Reinstate the right of assholes to yell fire in a crowded theater.
  4. Fight to prevent schools from searching student backpacks!
  5. WHY THE HELL AREN'T THE INVIOLATE AND PERFECT SECOND AMENDMENT PEOPLE UP IN ARMS AGAINST THE GODDAMNED  PATRIOT ACT!!!


Seriously, people.

Wednesday, December 19, 2012

Mental Illness -- The Cuphineous Debate

This is a good read and it brings up a very important point. 

While the treatment of those with mental illness is a vital need in our country, the mentally ill account for an infinitesimally small percentage of our gun violence. 

The question is whether we allow our discussion of gun control to be derailed into an equally important but mostly cuphineous discussion of mental illness in order to cut the number of mass-shootings or whether we keep the focus on weaponry in order to reduce the more banal retail violence that kills 8 and injures 30 children each day.

My personal vote, as a father, a teacher, and a citizen is that we deal with both issues but if the goal is to save innocent lives, then we must focus on the core issue, gun control. 

And again, we need to look beyond simply banning new sales of assault weapons and extended clips.

Tuesday, December 18, 2012

Beyond Bans -- other gun control measures we need to consider

Now that the NRA instituted waiting period for discussing gun control in public after a mass shooting has nearly passed, ideas are emerging about which policy changes would be most effective in deterring future events.

Most of these ideas are centering around the banning of large-capacity magazines and new sales of assault weapons and while I support both of these measures, I don't think they will have much of an effect on the number or type of weapons in circulation nor do I believe that they will deter gun violence.

But there are two ideas that are being pushed that could make a big difference but they need broader support to get traction.  Please consider them

1.  Ammunition Excise Tax:

We do it for cigarettes, alcohol and gasoline in order to defray to both defray the costs to society incurred by their use and also, especially in the case of tobacco, to deter their use.  This would be a simple and easy method of deterring the careless use of ammunition, driving up prices so people would think twice before expending dozens of rounds in a drive-by.

Also, it skirts the 2nd Amendment concern-trolling that direct bans on weapons themselves incur, and the money raised can be used for gun safety programs and to defray the health and societal costs of gun violence.

The amounts would have to be considerable.  Currently 9 mm hollow-point rounds sell for $0.46 each online.  If that amount were doubled with a $0.50/round excise tax, it would double the cost and force purchasers to reconsider the purchase.

This may not stop spree killings, but it might have a measurable impact on street crime and New Years Eve gunfire celebrations, both of which incur a larger human toll.

2.  Gun Owner Liability

Currently, approximately 500,000 guns are stolen each year in this country and more than a quarter of all guns that are used in crimes were stolen from their registered owners.  Currently it is not mandatory to report a theft.  In 9 states already, gun owners can be held criminally liable for the death or injury of a child if their gun was improperly stored and causes injury.  There is fairly extensive legal precedent for charging somebody with negligence or reckless indifference for behaviors that lead to preventable harm, so why not extend that to gun ownership.


If my gun is improperly stored and stolen from my home or person and then used to cause injury or death, I should be held liable for providing the weapon.

I say this as someone who owns guns. I know for myself, if the threat of liability was present I would have to consider whether it was worth keeping my guns -- even though they are both (working) antique keepsakes that we inherited from loved ones.  I don't think I'm alone in this.


If we are going to make a measurable dent in gun related injuries and deaths, we need to begin thinking beyond simply controlling new sales of mega-clips and assault weapons.  We need to begin thinking in terms of how we can modify our existing structures to inspire a widespread change in attitude and behavior.

To wit: $7.00/pack cigarettes have done more to prevent smoking than banning the sale of cigarettes to those under 18 ever did.

Saturday, December 15, 2012

Every Wasted Day Means 38 Wasted Lives

We can't wait.

On Friday we lost twenty children all at once.  In twenty five minutes a collective 1,500 years of future life was lost.  These children left their clothes on the floor Friday morning and their parents will have to pick up knowing that it is the last time that they'll do so.  They left dvds in the DVD player that will shuttle out and surprise their parents weeks from now.  Their breakfast dishes were still in the sink on Friday night and a mother or a father washed them for the last time.   The grief in Newtown is powerful and overwhelming, but we do not have the luxury of time that allows us to  wait until we've properly mourned these deaths before talking about gun control.

The mourning periods between gun assisted mass murders are stacking up on top of each other. They will suffocate us if we wait.

We need to do this now. We need to have already done this because today another 38 children will be shot. 8 of them will die. 30 of them will be scarred for life. They won't get shot all at the same place or all by the same person, but they will be shot. 7 have been shot since I started writing this.

Tomorrow, another 38 children will be shot. Each child's death, each murder, suicide, or accident doesn't just kill the child, it kills the whole family.

We cannot wait any longer.

But the discussion needs to go beyond simple gun control. The discussion needs to be one of societal change, of cultural revolution. We need a Kuhnian shift in thinking in the United States of America.

But gun control is where we have to start because gun control works.

There is a strong correlative argument for the efficacy of stricter gun control laws and articles like this one are useful to point to as we engage with those who will inevitably argue that gun-control is pointless or ineffective.

The article also points out that most gun violence in our country happens to darker, poorer children than those gunned down on Friday.

I teach in Watts where gun violence has taken on all the trappings of the banal. We all see it, hear it, talk about it, sense it, and have codified our ready reactions to imminent threat into the workaday elements of our daily routines. This is true for teachers and for students.

Guns are as much a part of life as cancer.

Gun control will make a real difference with our kind of violence. If guns are harder to get, fewer people would have them. If guns aren't available easily across the line in Nevada and at gun shows, Californians will be safer. Our violence could be greatly reduced by a shift in national gun policy, but our violence is not the violence that worries people.

Our violence in Watts just kills poor people, so hasn't inspired national discussions about stopping it. Instead we have national discussions about making sure that the rest of us are armed so we can shoot poor people, too.

We need gun control. Gun control laws are necessary for the protection of all people. Trigger locks, waiting periods, bans for assault weapons and armor-piercing rounds, the end of open carry, the restricting of concealed carry, are all necessary steps that must be taken if we wish to protect Trayvon Martin, the innocent kid who finds his father's gun, the victim of mistaken identity, the victim of domestic violence, and curtail the impact of street crime. Gun control laws can also mitigate the amount of damage done by future Adam Lanzas, but they won't stop rampage killings.

Gun control will save children, but it will more likely be children like Ulysses Gongora, a former student of mine gunned down while walking his brother to school. Gun control might have kept David, Derek, Darryl, Donald, Isaac, and Justin -- all of whom are students of mine that have been shot in the last five years -- from becoming the walking wounded.

But what happened in Sandy Hook, in Wisconsin, in Aurora, in Portland, in Tuscon, and in every mass shooting in history is different and I think we make a mistake when we collapse the metric and treat them as simple gun violence. They are a type of violence that is made worse by the easy access to guns, but just as with our banal violence in Watts, there is a root cause for this exotic violence, too.

Some of the perpetrators are insane and a return to the pre-Reagan laws regarding mental health commitments would be a step back towards national sanity and public safety.

But many of these killers know right from wrong. They know what they're doing -- Dylan Kleibold and Eric Harris knew. The Wisonsin shooter knew. I bet this guy knew, too. Otherwise he wouldn't have killed himself in the end.

Rampage killings are different from our stupidly personal Watts violence because they are not committed in response to an immediate threat, an error, a possibility of personal gain, or in pursuit of the prevention of a loss of prestige or power. These mass shootings are instances of de-indiviudualization where the targets are not targeted for who they are but for what they represent.

They are the product of a deadly combination of fear and entitlement which makes them closely akin to hate crimes except that their targeted minority is humanity.

And just as we understand that the root of hate is fear, we must begin to acknowledge that fear is a root cause here, too.

No, they aren't afraid of their victims. They aren't acting in a perverse self-defense. It's just that people can only be afraid for so long before fear spoils, ferments, and becomes the acid rage that fuels hate.

This isn't news. This was the point of Michael Moore's Bowling for Columbine. We all talked about it a decade ago, but we haven't changed. We were shocked then that Canada had just as many guns as we did, but even with that, the worldwide map of mass-murder still looks like this:

Image Taken from The Rachel Maddow Show


Gun control laws can and will make a difference -- especially in neighborhoods where gun violence doesn't make national news, but until our nation stops treating fear as a virtue, we will continue to support the mindset that leads both to our national arms fetish and our willingness to use those armaments against innocents in order to make a point.