By Brian E. Frydenborg (LinkedIn, Twitter @bfry1981, YouTube, Facebook)  February 9, 2021

SILVER SPRING—I am being wildly uncharacteristically simple here, but the extraordinary circumstances surrounding the Capitol insurrection incited by Trump can be distilled to a very few simply points that are not debatable and are crystal clear.

I.

Even before the 2016 election, Trump was laying the groundwork to delegitimize any election result that did not have him as the winner.  Such talking points and an emphasis on nonexistent mass voter fraud were constant themes from Trump’s 2016 presidential campaign and throughout his presidency until its violent end, with plenty of direct quotes from Trump and his closest allies well-chronicled by others.  Even during the 2016 campaign, Roger Stone—one of his closest friends, confidantes, and surrogates—had threatened violence against delegates if they did not stick with Trump during the Republican National Convention (Trump himself threatened riots) and said that there would be “a bloodbath…if they attempt to steal this and swear Hillary in;” Stone threatened an “insurrection” back in 2017 should Trump be impeached; and Trump has since fully pardoned Stone for his conviction by Special Counsel Robert Mueller’s team on obstruction of justice, witness intimidation, and lying to Congress, pardoned him for him efforts to cover for and protect Trump during the Russia investigations, Trump officially condoning and excusing the behavior of Stone with his pardon.  Stone is also associated with several of the groups deeply involved in the insurrection, including the Proud Boys, whom Trump told during the first presidential debate with Joe Biden to “stand back and stand by” (for what?  We now know).   So it was not just recent months, but years and especially the past year in which Trump and his allies (many besides Stone) laid the groundwork for his attempt to overturn the election and to spread a historic “big lie” to radicalize his supporters to be ready and motivated to act on his behalf if he lost.  The “bloodbath” predicted by Stone was only ever so narrowly avoided on January 6, 2021.

II.

Going back to the 2016 campaign, Trump has a long history of claiming the “tough people”—within whom he includes bikers, the military, “Second Amendment people,” and police—would stand up for him and use violence if necessary to ensure he won and/or stayed in the presidency.  Many police did support him, and from what we know, it seems he had more than a few supporters working as Capitol Police on the day of the Capitol insurrection who aided and abetted the insurrection, and even more who did not seriously try to stop it.  This all fits well into the context of Trump’s history of inciting violence.  He essentially was telling everyone “I have a violent mob I can activate if you do me wrong,” and we saw what he was saving it up for.

III.

In this context, especially when two days earlier, Trump was in Georgia railing about how the election was stolen from him one day before the Senate runoff elections there, it all fits neatly together: just watch or read his rambling speech at the “March to Save America” rally organized by his people in front of the White House to his mob on January 6. It is clear, crystal clear, what he is saying and doing: he is calling on his supporters to march on the U.S. Capitol in the middle of Congress’s and Vice President Pence’s official tallying of the Electoral College majority of votes for Biden over Trump (306-232) to interfere and overturn this process, to enact a preventive coup to stop the legitimate transition of power, and to use intimidation and force if necessary, even against his own vice president.  Trump was even happy about the storming of the Capitol and called a Senator hiding from the mob to pressure him on trying to overturn the election results.  Security was deliberately light by design of the Trump Administration and reinforcements were willfully prevented from being sent when they were most needed.  This is not that difficult to figure out.

IV.

Trump was impeached on January 13 while still in office a week after his culminating effort to incite the January 6 Capitol insurrection and a full week before his term of office was then set to expire on January 20. Even though Republican leadership prevented the Senate from convening in time to hold Trump’s impeachment trial before Trump’s presidency ended, now most Republicans in Congress absurdly claim because Trump in no longer president, his trial is unconstitutional, an argument that is disingenuous, against the intention of the Founders, and a vile assault on historical precedent, the Constitution, and basic logic.  Rather than take my word for it, read a letter penned by over 140 constitutional lawyers or another penned by over 170 legal scholars, both representing a wide ideological variety of views—including many conservatives and Republicans—calling out the hollowness of the “frivolous” idea that the current Senate impeachment trial of Trump is unconstitutional, and while this view is not universal in this field, there very much seems to be a robust majority of experts supporting this current trial’s constitutionality.

V.

No links needed here: his trial can be really simple, so simple, in fact, it could easily have been conducted in the final week of Trump’s presidency before Biden took office, avoiding the sham argument Republicans are making now.  Let us just review what is at stake here:

1. Trump was impeached for inciting an insurrection
2. Trump gave a speech at a rally titled “March to Save America” inspired by Trump’s public pressure campaign to overturn the election results
3. Trump riled up, then told and incited his tens of thousands of assembled supporters to march on the Capitol where Congress and the Vice President were carrying out their constitutional duty to tally the Electoral College votes of the 2020 election, which Biden clearly won
4. Trump’s mob went to the capitol and did just that, violently and illegally
5. Trump was pleased by the storming of the Capitol, continued to tweet his inciting lies during the insurrection, praised the insurrectionists, and used their attack to pressure lawmakers and Pence to support his insurrection’s aims
6. All of the jurors in Trump’s trial—our sitting U.S. senators—were literally witnesses to what happened: their lives were in danger and they had to be evacuated for their safety away from a Trump-dispatched mob, of which more than a few people were determined to kill those not caving into Trump’s illegal, unconstitutional demands, so evidence is essentially unnecessary because all the senators lived through it and the vote to confirm Trump incited the insurrection is simply a vote to confirm their own memory and whether or not they think a sitting president inciting violent insurrection to overturn an election result in which he lost is an impeachable offense, not in any real way substantively a vote on “constitutionality”
7. This is not a question of any particular law or legal threshold, though those have been crossed and add to a strong argument; rather, it is a political, not a legal, decision authorized by the constitution to be made by the Senate as to whether Trump’s incitement of violent insurrection is, in the view of sitting senators, an impeachable offense warranting removal from office and the strongest condemnation by the body politic and history, or whether (and which) sitting senators are basically fine with a president inciting violent insurrection against themselves and their own Senate and Congress
8. Most Senate Republicans planning to vote to acquit Trump are pure cowards and unfit for office, hiding behind ludicrous constitutional grounds to avoid having to vote on the clear merits of whether or not Trump incited insurrection because they lived through it and nearly all must know that this is exactly what happened

It is as simple as this: did the senators see, hear, and live through what this nation and they lived through on January 6 (an obvious 100% yes for all of them), and will they adhere to the most basic standards of moral and ethical conduct and conclude that (DUH!) inciting violent insurrection is an impeachable offense warranting removal and conviction by the Senate, or, will they place political party, personal convenience, and the pursuit of power above the republic, the Constitution, and any sense of moral or ethical conduct?

Trump is a mortal threat to our republic, and to set a proper precedent, he must be convicted in this Senate trial and barred from ever holding any federal office ever again, and there is historic bipartisan support for this from Republicans: Rep. Liz Cheney, daughter of Republican Vice President Dick Cheney and the third-highest ranking House Republican, noted that “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution,” voting with an unprecedented ten of her fellow House Republicans to impeach Trump; trial juror Sen. Mitt Romney, the Republican Party’s presidential nominee in 2012, exclaimed that “I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense.  If not, what is?”

If Trump is not convicted, would-be tyrants will be emboldened by Senate Republicans to think that trying to overthrow the system through incitement and insurrection is not a big deal, not even close to enough of a big deal to warrant removal from office.  These tyrants will know that if they try at the end of their presidency to overthrow a system installing a rival to succeed them, a precedent will have been established, that, as long as they and their political allies wait out the clock, they can just leave office with dignity even if their insurrections fail, with full honors and the ability to hold federal office again, even maybe the presidency.  The Senate, especially Senate Republicans and the Republican Party, are on trial here as much as Trump himself, and will be condoning violent insurrection if they do not vote to convict.

That is all I have to say, so obvious is this open-and-shut case.

Also see Brian’s related Jerusalem Report article, Trump Capitol insurrection: The history behind the violence, his related article here, Trump Impeachment Trial Shockingly Makes Shocking Insurrection Dramatically More Shocking, his related interview on The Jist Chatter Podcast, and his eBook, A Song of Gas and Politics: How Ukraine Is at the Center of Trump-Russia, or, Ukrainegate: A “New” Phase in the Trump-Russia Saga Made from Recycled Materials, available for Amazon Kindle and Barnes & Noble Nook (preview here), and be sure to check out my podcast interview with Georgia election officials Brad Raffensperger and Gabriel Sterling, both cited in Trump’s second Senate trial!

© 2021 Brian E. Frydenborg all rights reserved, permission required for republication, attributed quotations welcome

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One author’s attempt to combine all his writing on gun policy/politics in America in way that he hopes will help others understand this pressing issue and arm them with knowledge to debate and discuss it along with a clear understanding of what needs to be done. 

Originally published on LinkedIn Pulse December 5, 2015 

By Brian E. Frydenborg (LinkedIn, Facebook, Twitter @bfry1981) December 5th, 2015

The following is a preview of the brand new short-but-powerful eBook Needless Deaths, Inexcusable Responses: Missives on Guns, Policy, and Politics in America,  available on Amazon Kindle, Barnes & Noble Nook, and in ePub format!

Summary:

From Columbine to Sandy Hook to San Bernardino, mass shootings are an epidemic unique to America among developed/Western nations in their frequency. But the level of “normal” gun violence in America is also far higher than virtually any other developed/Western nation as well. In this short yet useful and data-driven exploration of the intersection between guns, policy, and politics in America, historian and policy/political expert Brian Frydenborg presents a series of discussions from a range of his work (including one article never before published) arranged by different themes to bring his readers up to speed on the crucial public policy and political issue of guns in America. 

Going over the history, American exceptionalism, numbers, mentalities, and, building on all of these, possible solutions regarding the problems with guns in America, Frydenborg takes his readers on a journey beginning with a historical, contextual understanding of the Second Amendment as America’s Founding generation would have understood and lived it, going back over a millennium into a sacred, constant tradition of English history dating back to the withdrawal of the Roman Empire, but lasting up to and through the American Revolution. Next, a brief yet sound data-driven analysis is presented explaining why America is so exceptional when it comes to gun violence. Then, an exploration of data on how gun violence is carried out in America, by whom and to whom and where, helps establish that the problems surrounding gun violence are hardly insurmountable. Next up, he discusses the absurdity of the mentality of Americans when it comes to gun violence, comparing the policy responses to gun violence and terrorism and noting that terrorism kills far fewer Americans each year, even taking into account 9/11 and wars in Iraq and Afghanistan, and also embarks upon a surprising but eye-opening comparison between African-Americans and Palestinians. Finally, taking all of this into account, Frydenborg makes a clear and compelling case about the policy directions America needs to take as far as reducing gun violence.

Anyone seeking to understand the tragedy of gun violence in America would do well to consider Brian Frydenborg’s thoughtful, data driven, and conveniently thematically organized pieces on this urgent policy and political topic, especially as people consider who they will support in the presidential and other political races of 2016. The lives—or deaths—of thousands depend on the policy choices these leaders will make.

Table of Contents

Preface. 3

PART I: HISTORY.. 4

Chapter 1: The Irrelevant Second Amendment 5 

PART II: AMERICAN EXCEPTIONALISM.. 11

Chapter 2: Why is the US so Good at Gun Violence?. 12

PART III: NUMBERS. 17

Chapter 3: Gun Violence in the U.S.: The Numbers Behind the Madness. 18

Chapter 4: American Guns: Not Just Killing Americans (See Mexico) 26

PART IV: MENTALITIES. 30

Chapter 5: How Not to Stop Terrorism & Gun Violence: Lessons from the Republicans  31

Chapter 6: Arms and the Man (Underwater): The Myth of Mass Gun Confiscation in Post-Katrina New Orleans. 44

Chapter 7: A Ferguson Intifada: Why African-Americans are America’s Palestinians  49

PART V: SOLUTIONS. 59

Chapter 8: These Maps Debunk Everything the NRA Has Told Us About Guns. 61

Chapter 9: Development: The Fix for Terrorism & Violent Crime. 68 

Afterword. 75 

About the Author 78

Dedicated to all who have been touched by domestic gun violence in America, may their suffering not be in vain, and to my friends and family, without whom I would not be alive.  And to my readers, without whom this and all my articles are just fancy diary entries.

“I try to deny myself any illusions or delusions, and I think that this perhaps entitles me to try and deny the same to others, at least as long as they refuse to keep their fantasies to themselves.”

—Christopher Hitchens, Hitch-22: A Memoir, 2010

“We say keep your change, we’ll keep our God, our guns, our Constitution.”

—Sarah Palin, speech at CPAC, February 11th, 2012

“Heroism breaks its heart, and idealism its back, on the intransigence of the credulous and the mediocre, manipulated by the cynical and the corrupt.”

—Christopher Hitchens, “What I Don’t See at the Revolution,” Vanity Fair, March 31st, 2011

Preface 

As Cicero wrote in his Orator over 2,000 years ago, “Not to know what happened before you were born is to be a child forever” (120).  Therefore, we shall begin with history.  From history, we will progress to data, then to mindsets, and, finally, we will see where all that points us in terms of solutions.  Seemingly simple enough, and yet, on such a contentious issue, we shall go into some detail just so that the reader can more easily refute those who are part of the problem and not the solution, those who cling to fantasies and falsehoods in the face of much better, far more productive alternatives.  After all, this debate, among many in modern American politics, has become clouded in manufactured ideology and irrationality.  Yet such things are the mortal enemy of policy, with which the collection of essays/articles here is primarily concerned.  Tame the politics and mythology, and policy may yet win the day.

PART I: HISTORY

This was the first piece I had ever formally written about the issue of guns in America.  As a lover of and student of history, naturally, I felt a good place to begin was going back in history, to the origins and context of the Second Amendment to the United States Constitution.  Unless one properly understand what the Second Amendment is (and what it is not), any discussion becomes something of a farce.  Perhaps, then, is not surprising that most discussions on guns in America are just that: farces, as illustrated by how few Americans actually know and understand what is illustrated in this section.  Most conservative Republicans—including, unfortunately, too many Supreme Court Justices, believe that the Second Amendment enshrines a right to bear arms for every individual and that this right is not subject to any government regulation.  Such an interpretation flies in the face of the substantial weight of history and the Amendment’s context, as will be demonstrated in the following chapter.

Chapter 1: The Irrelevant Second Amendment

The individual right to keep and bear arms as part of the state militia is guaranteed by the Second Amendment. What does that have to do with today’s citizenry? Nothing.

Vikings vs. English Saxon fyrd- The History Channel/Vikings

Originally published by American Gun Laws, republished by LinkedIn Pulseand by Stupidparty Math v. Myth

Updated November 30th, 2015, to include a discussion of Lord Blackstone’s Commentaries 

Perhaps the most depressing thing about the gun-control debate in the United States, apart from the continuous stream of deaths that still have yet to merit not even a modestly serious policy response, is that for as many times as the Second Amendment to the U.S. Constitution—part of what is termed the Bill of Rights—is invoked, nearly as many times there is a total lack of historical context of that very amendment presented alongside. Into this vacuum all sorts of creative reasoning has flooded, to such a degree that the highest law courts and judges of the land, too, have fallen to such erroneous thinking that ignores the history and tradition from which the Second Amendment emerged.

J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon. The roots of this amendment go back to Saxon culture in the era of the Roman Empire. When Rome decided to withdraw from its provinces in the British Isles early in the fifth-century to consolidate its withering power in the rest of the West, the Saxons, Angles, (from which England got its name) and other Germanic tribes eventually filled the power vacuum the Romans left. The most visible presence of Roman governmental authority had been the army, the professional, standing Roman legions that had been stationed in Britain. Security after their withdrawal became nonexistent, but the Saxons, after a bloody conquest, imported a tradition of theirs from mainland Europe with them: that of the fyrd, as the U.S. Army’s official history explains. In this system, all adult males had to engage in military training, and, in times of war, would be expected to fight. This tradition continued throughout English history. The English freemen, like the Saxons before him, were given the right to bear arms as part of a contract in which their responsibility was to train in their local militia and defend the realm when necessary. This part is important: there is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia… (CHAPTER CONTINUED IN FULL VERSION)

END OF PREVIEW… WANT MORE??

If you are interested in reading the full eBook you can find it on Amazon Kindle,Barnes & Noble Nook, and in ePub format.  And, in general, do not hesitate to reach out to me or share your thoughts about the book on LinkedIn, Facebook, and Twitter(you can follow me there at @bfry1981)!

Published on LinkedIn Pulse December 10, 2014

Originally published here on American Gun Laws thanks to Jason Rogers

By Brian E. Frydenborg- LinkedIn, Facebook, and Twitter (you can follow me there at @bfry1981) 3/19/2013

Other articles in this series:

How Not to Stop Terrorism & Gun Violence: Lessons from the Republicans

Development: The Fix for Terrorism & Violent Crime

American Guns: Not Just Killing Americans (See Mexico)

Gun Violence in the U.S.: The Numbers Behind the Madness

The Irrelevant Second Amendment

Good/Column Five

In trying to understand why America has such a bad rate of gun violence in comparison with other countries of similar socio-economic development, I want to begin by quoting from this article from The Atlantic:

According to 2008 figures compiled by the United Nations Office on Drugs and Crime, the U.S. homicide rate for 2010 is 5.1 per 100,000 people. Only Estonia’s is higher, at 6.3. The next most violent country is Finland, which has a homicide rate of 2.5, half that of the U.S. The remaining 28 developed countries are even lower, with an average of 1.1 homicides per 100,000 people.

The United Nations Office on Drugs and Crime compiles statistics on crime around the world, and even though its violent crime rates have been declining for roughly two decades, the U.S. still has much higher rates of gun violence compared to other developed nations.

All countries have people. All countries have mentally disturbed people. All countries have mental health systems. All countries have laws. And all countries have guns.

So why does the U.S. have such a high number of gun murders, and, more importantly, why does it have almost the highest rate of gun murders compared to every other developed country? Our people? Our number of crazy people? Our mental health system? Our laws? Our guns?

Let’s look at each of those five factors.

People

Are there things about our people and our culture that contribute to this? Clearly, yes, but these things are extremely hard to quantify and explain. America does have a violent history and strong senses of individuality and adventurism compared with many other countries. We also, statistically speaking, have higher violent crime rates and pretty much the highest (depending on the category, we win in many) poverty rates compared with almost all or all other developed countries. And within the poverty statistics, when we do come in first, we leave the competition far behind. Moore poor, and poorer, people mean more instances of less stable lives, more desperation, and, generally, more crime. These could very well all be contributing factors, and are issues that should be understood, analyzed, and addressed. But from a public policy perspective, they are perhaps the most daunting: sure, eliminating poverty in the U.S. would be great, but that is hardly a near-term practical goal. Understanding violence as a factor in American history, and the effect of a strong sense of individuality, would provide useful information but studies on these subjects would not by themselves produce any workable, measurable policy results. Still, within the U.S., high poverty, low numbers of college graduates, and a high margin of votes for McCain over Obama were among the best indicators of a state with higher rates of gun deaths, whereas states with low poverty, having more college graduates, and a high margin of votes for Obama over McCain were among the best indicators of states with the lowest rates of gun deaths. We will get to more about our culture later, though, when we talk about guns. When we get to the laws section, however, we will come back to this dataset.

Crazy People

Do we have more crazy people than most other developed countries? That is a very difficult question to answer. It depends how you define crazy, and how accurate would that measure be anyway, in a country with notoriously, uniquely high heath care costs where cost is a main reason people avoid treatment for severe mental disorders? It is not likely that among other developed nations, the U.S. somehow has such a hugely higher percentage of mentally ill people that somehow that would explain our higher rate of violence. Moving on…

Mental Health System

Our spending on the issue is within the same range as other developed countries as a percentage of our overall healthcare spending. Yet, as the above section raises the logical question, do we leave higher rates of the mentally ill untreated here in the U.S.? From a mental health perspective, this is an important question to ask, but not from a perspective of trying reduce gun deaths and gun violence. Why so? Even if all mentally ill people were prevented from committing violent crimes, since they only commit 4% of the nation’s overall violent crime, this would barely affect the overall level of violent crime in the U.S. In fact, they are at least eleven times more likely to be the victim of a violent crime than the general population. So the idea that fixing the mental health system in the U.S. should be the first, or a major, step towards reducing gun violence is not based on any serious understanding of the data.

Laws

Here is where things are drastically more telling. Going back to the dataset from the “people” section above, it is quite interesting to note that within the U.S. the states with the lowest gun death rates generally had much more restrictive regulation of guns than states that had much higher rates of gun deaths, which had fewer laws restricting the purchase and use of guns. In fact, having those gun laws or not were some of the best indicators of how bad a gun death rate was in any given state. Other similar studieshave found this correlation as well, and though it is not necessarily a case of direct cause and immediate effect, it is hard to discount that gun laws play some major factor in a state-to-state comparison, given the wide disparity in gun death rates between states with, and without, restrictive gun-control legislation. Critics of gun laws point to Chicago, which has extremely restrictive gun laws but has horrific gun violence; yet this argument is poorly constructed because it ignores the fact that over one-quarter of all the guns seized in Chicago came from the immediate surrounding area, that many guns come from farther away, and that much of Illinois and other nearby states have very lax gun laws that allow these guns to flow into the city. To isolate one locality and ignore the surrounding area is simply not effective or meaningful policy analysis. Internationally speaking, as one article noted, “[o]ther countries all over the world play the same video games and have the same mental health problems as the United States, but manage to avoid a sky-high gun murder rate and frequent public shooting massacres.” The same article offers an analysis of several other countries’ gun-control laws. The Council on Foreign Relations also offers a sample analysis of other countries’ laws and how they differ from U.S. laws, each country with stricter laws and a vastly lower rate of gun deaths than the U.S. The evidence shows that time and time again, more gun laws in the developed world mean lower gun death rates by large margins.

Guns

Finally, this is perhaps the starkest data set: in developed countries, the data is clear: having guns means more gun deaths. By far, we have the highest amount of guns per person of any country on earth. It’s not even close. Here in America, we have 88 guns for every 100 people. That means we have 50% of the world’s guns even though we are just 5% of the global population. The silver medal goes to Yemen, with a measly 54 guns per 100 compared with the gold-medal-winner America, and other all-stars in the top ten are Serbia and Iraq. All three of those countries are now experiencing, or have experienced in the last few decades, war on their soil, whereas the U.S., having last fought a major war on its soil in 1865 (if you don’t count chasing down Native Americans), does not have that excuse. Perhaps the way we think of, idolize, and use guns, too, is a major factor, considering that Switzerland has high levels of gun ownership (since adult Swiss males are required to train with and possess guns as part of the Swiss Army, which functions like a citizens’ militia) and that Switzerland has but only a tiny fraction of the gun death rate that the U.S. has. Still, there is an increasing trend that these Swiss weapons are not kept at home but at various weapons storage facilities so they are not available right away, say, in a moment of anger or passion. So American gun culture and the high level of firearms per person in the U.S. would certainly have to be major factors explaining the high U.S. gun death rate.

All in all, sure, cultural factors seem to play a role, probably a significant one, in our national gun violence tragedy. We very likely do not have more crazy people to a degree significant enough to explain our problem that way, nor can our mental health system be a major factor if only 4% of violent crime is committed by those with mental disorders. Laws, well, clearly there are major differences between states in the U.S. with stricter and more lax laws, and between the U.S. and other developed countries with stricter laws. And there is a major mountain of statistics showing a link to less deaths and tougher gun laws. Finally, add the fact that we have so many guns per capita, more so than in any other country on planet earth and almost 63% more than #2 Yemen, and, well, it seems pretty clear. Sure, our pro-gun culture and how we vote politically certainly affect us: deep Republican-voting red states tend to have far more gun violence. People living in Democratic-voting blue states, because of their politics, are less likely to idolize gun culture, certainly, and that’s a factor not to be ignored. What this means is that political awareness and political will are essential to reducing gun violence. And the facts show that along with low political will among the population to tackle gun-control, more guns and laxer laws are the main factors that contribute to gun violence that we can do something about in the near future. We cannot fix poverty and lack of education, the other major indicators, overnight, but we sure can change our gun laws and bring the statistic of 88 guns per 100 people in this country down. But this requires political will and a culture willing to face facts. With the political will, good laws, and less guns, we can save lives not in a generation, but now.

Vikings vs. English Saxon fyrd

Published on LinkedIn Pulse December 4, 2014

By Brian E. Frydenborg 3/19/2013

Updated November 30th 2015 to include a discussion of Lord Blackstone’s Commentaries

Originally published here on American Gun Laws thanks to Jason Rogers, republished by Stupidparty Math v. Myth

Other articles in this series:

Development: The Fix for Terrorism & Violent Crime

American Guns: Not Just Killing Americans (See Mexico)

Gun Violence in the U.S.: The Numbers Behind the Madness

Why Does the U.S. Have So Much Gun violence?

Perhaps the most depressing thing about the gun-control debate in the United States, apart from the continuous stream of deaths that still have yet to merit not even a modestly serious policy response, is that for as many times as the Second Amendment to the U.S. Constitution—part of what is termed the Bill of Rights—is invoked, nearly as many times there is a total lack of historical context of that very amendment presented alongside. Into this vacuum all sorts of creative reasoning has flooded, to such a degree that the highest law courts and judges of the land, too, have fallen to such erroneous thinking that ignores the history and tradition from which the Second Amendment emerged.

J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon.

J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon. The roots of this amendment go back to Saxon culture in the era of the Roman Empire. When Rome decided to withdraw from its provinces in the British Isles early in the fifth-century to consolidate its withering power in the rest of the West, the Saxons, Angles, (from which England got its name) and other Germanic tribes eventually filled the power vacuum the Romans left. The most visible presence of Roman governmental authority had been the army, the professional, standing Roman legions that had been stationed in Britain. Security after their withdrawal became nonexistent, but the Saxons, after a bloody conquest, imported a tradition of theirs from mainland Europe with them: that of the fyrd, as the U.S. Army’s official history explains. In this system, all adult males had to engage in military training, and, in times of war, would be expected to fight. This tradition continued throughout English history. The English freemen, like the Saxons before him, were given the right to bear arms as part of a contract in which their responsibility was to train in their local militia and defend the realm when necessary. This part is important: there is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia.

There is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia.

Fast forward centuries later to the establishment of English colonies in the New World, in particular the colonies that would form the United States of America’s original Thirteen. Most of these colonies were founded by the English, and those that were not came under English rule long before the American Revolution. The state militias were merely the continuance of the colonial militias after America broke off from Britain by declaration in 1776, by treaty in 1783. One has to think of the massive technological changes that occurred between 1791, when the Second Amendment was added to the Constitution, and today, and then it should be obvious that the same system is not in place. For one thing, back then almost the whole population lived in the countryside, not cities, where there were lots of dangerous animals and pesky French, Spanish, and British troops prowling around, plus many Native Americans tribes that did not like their land being taken from them. This militia system made perfect sense in such a physical environment for almost all Americans except for a tiny minority in coastal cities lived in rural areas and on the frontier. It also made sense especially when one considers that many of the founders had a philosophical opposition to a large standing army, keeping in mind the warlords of republican Rome and the more recent example of Oliver Cromwell’s New Model Army which had not helped the brief experiment of England with republicanism in the mid-seventeenth-century. Theoretically, an army composed of state militias, tied to their localities, would be harder for a tyrant manipulate. Yes, some units of the Massachusetts colonial militia have survived in some form as they morphed, along with other units, into the U.S. National Guard, the direct descendant of the state militia system referenced in the Second Amendment. Yes, all adult males do register for the draft via the Selective Service. But registration is generally all that is required for adult males except for a few drastic eras in U.S. history. And the average men today do not regularly train, and are not expected to keep and bear arms of their own. Even those in the military, Guard or otherwise, do not own the weapons they will use in combat and cannot keep them in their homes. Even just by 1865, the state militia system, which evolved dramatically during the course of the four years of the Civil War, bore little resemblance to the system referenced in the Constitution, and after the first two decades of the twentieth-century, only a few vestiges of that system nominally existed. From WWI forward through the Vietnam War, the federal government brought in, trained, and equipped the vast majority of troops that fought, not the National Guard, which today is only a small part of the overall U.S. Military. The average adult man is not the only one, then, in the U.S. that has nothing to do with the National Guard; the average U.S. man in a military uniform has nothing to do with the Guard either and is part of a force structure that is only supplemented by the Guard. That should not, of course to discount the brave service of Guard units that served in Afghanistan and Iraq, or those that helped after Hurricanes Katrina and Sandy. But the U.S. Military today is overwhelmingly a professional, fully federalized, standing army. Even the Guard itself is composed of units structured in such a way that they bear virtually no resemblance in practice (even if they may in spirit) to the state militias referenced in the Second Amendment when it was written in 1789 and adopted in 1791.

As far as the arms that need to be “kept” and “borne,” if you’re in the Guard today you cannot bring a personal firearm you keep and own as an individual to bear while on active Guard duty. No, the weapons that will be borne into battle are owned by the U.S. Government, are kept on base, and not taken home or owned by the Guardsmen. Effectively, modern Guard practice destroys the traditional relationship between keeping and bearing arms and wholly separates those acts from service in the militia. In the end, all three major components of the Second Amendment—keeping, bearing, and serving in the militia—are transformed by modern Guard practice into relics from a past era that do not function or work together at all in the way they did in the late 1700s. Both its rights and the duties might still exist on paper, but they do not exist at all in practice and they apply to no one since no one keeps their own arms to bear in the capital M “Militia.”

The year after the Second Amendment was adopted as part of the Bill of Rights, Congress passed a law requiring all fit adult males to enroll in the militias, with each man required to provide his own basic equipment…Within months of its adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia.

The year after the Second Amendment was adopted as part of the Bill of Rights, Congress passed a law requiring all fit adult males to enroll in the militias, with each man required to provide his own basic equipment. Though enforcement of this law would prove very problematic, it is very important to realize how important the passage of this law is to understanding Congress’s conceptualization of the Second Amendment as Congress passed at the time it was passed: within months of its adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia. The point is this: the right does not exist without the responsibility. This goes back to the Saxons and early English, where this tradition began. This is not merely conjecture: the entire concept of citizenship in the late eighteenth-century minds of the Founding Fathers, almost universally educated in the Greek and Roman classics, was the same of republican Rome, Founding Fathers’ inspirationfor a republican government of checks and balances and divided government from which they created the American government and U.S. Constitution. In the ancient Roman republic, the Roman concepts of a right and citizenship are counterbalanced by the concepts of responsibility and duty: a right as a citizen is enjoyed because the responsibility of duty is accepted. And in today’s system, the responsibility to keep and bear arms in order to be of service to the militia is not a responsibility for all fit adult makes; in fact, it’s the responsibility of virtually no one.

Today, the Second Amendment is still on the books. It reads: “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.” It is a clear reference to an existing right, longstanding in English tradition going back to fyrd and the individual’s roles, responsibilities, and rights in reference to the militia. Does that mean that there is not a right to bear arms for an individual person, who today is almost certainly not in a capital M “Militia?” That is an interesting question and an interesting debate. The Second Amendment clearly references an absolute right, one that is part of a clear and explicit pre-existing tradition going back to Late Antiquity.  The mainly English colonists-turned Americans would have generally understood this and the reading of the Second Amendment to them would have been clear, especially to the educated Founding Fathers, many of them lawyers who would have had to have known about English law, the legalities of this tradition of militia service, and the rights and responsibilities this service entailed.  They would also have been familiar with Lord William Blackstone‘s landmark Commentaries on the Laws of England, one of the great legal treatises in the history of the English-speaking world; published in four volumes from 1765-1769 in decade before the American Revolution, it was well known in its day and was the main source of knowledge on English law on the American continent both in the years before and for many decades after the American Revolution (one American printing of the fourth volume was pre-ordered by sixteen of the fifty-six future signers of the Declaration of Independence, including John Adams, and by the father of John Marshall, one of the great Supreme Court justices of early United States history.  In the very first part of this massive work, Lord Blackstone made clear that there were two types of rights for Englishmen in English common law: absolute rights and auxiliary rights, the latter subject to limits and regulation, and the individual right to bear arms in self-defense was explained as one of the key auxiliary rights of Englishmen:

THE fifth and laft auxiliary right of the fubject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to reftrain the violence of oppreffion.  

And, again, this is not some new concept imposed upon English law by Blackstone; it is simply him putting into writing what had already been understood for generation after generation.  Thus, whether on one side of the Atlantic or the other, Englishmen in the era of Blackstone—the same era as the American Revolution and the drafting of the Constitution, Bill of Rights, and the Second Amendment—would have understood that there were two sets of rights related to the keeping and bearing of arms: an absolute right as part of the ancient English militia tradition and coupled with the responsibility of militia service, and a second auxiliary personal right to bear arms for self-defense but subject to various conditions and regulations.  But in the context of today’s society, the debate about an individual right to bear arms is one about which the Second Amendment, and the Constitution, is silent, as they only discuss the absolute militia right, not the auxiliary personal right. Ironically, those “militia” groups which are such religious believers in their concept of the Second Amendment are not even referenced in it since they are not the actual “well regulated Militia” referenced in it. Sure, groups like the NRA and the Republican Party are among the uninformed, and the Supreme Court has recently ruled in favor of a very different interpretation of this. But this is the same body that ruled free African-American men were not U.S. citizens just before the Civil War. Legal does not have to mean something is right in the sense of being correct (just think about slavery), and the rulings of ideologically driven justices may be law but are hardly accurate when they wholly ignore the history and tradition described above. It’s time to leave the Second Amendment out of the current policy debate as it is, clearly, irrelevant, despite modern distortions and inventions.

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