Tuesday, January 20, 2015

Bloodletting of a different sort

There was once a medical practise called bloodletting, which had been practised for millennia.  In fact, Bloodletting was also popular in the young United States of America, where Benjamin Rush (a signatory of the Declaration of Independence) saw the state of the arteries as the key to disease, recommending levels of bloodletting that were high even for the time. George Washington asked to be bled heavily after he developed a throat infection from weather exposure. Within a ten hour period, a total of 124-126 ounces (3.75 liters) of blood was withdrawn prior to his death from a throat infection in 1799.

Needless to say, that probably was what caused Washington to die, but it was "state of the art" medical care at the time the Constitution was written. This was despite William Harvey disproving the basis of the practice in 1628.  The introduction of scientific medicine allowed Pierre Charles Alexandre Louis to demonstrate that phlebotomy was entirely ineffective in the treatment of pneumonia and various fevers in the 1830s.

Things change and ideas that were widely accepted no longer have currency, which is why the US Constitution should not be rigidly interpreted.  I have pointed out that the institution of the militia came under criticism by Adam Smith in his Wealth of Nations for being inappropriate in a modern society.

The problem is that the US Constitution makes it clear that it is intended to "insure domestic tranquility, provide for the common defense, promote the general welfare" among other things.  Additionally, the Second Amendment makes it clear that a "well regulated militia" is "necessary to the security of a free State" with no amount of sophistry from Scalia and others trying to neglect the fact that "it cannot be presumed that any clause in the Constitution is intended to be without effect".

Far more evidence exists that the issues the Second Amendment were intended to address were civilian control over the military and the preservation or efficiency of a well regulated militia: not private guns.  The debates talk about military establishments that go out of control, which is something the Constitution spends a good deal of time trying to prevent:
For most Americans after the Revolution, a standing army was one of the most dangerous threats to liberty. In thinking about the potential dangers of a standing army, the Founding generation had before them the precedents of Rome and England. In the first case, Julius Caesar marched his provincial army into Rome, overthrowing the power of the Senate, destroying the republic, and laying the foundation of empire. In the second, Cromwell used the army to abolish Parliament and to rule as dictator. In addition, in the period leading up to the Revolution, the British Crown had forced the American colonists to quarter and otherwise support its troops, which the colonists saw as nothing more than an army of occupation. Under British practice, the king was not only the commander in chief; it was he who raised the armed forces. The Framers were determined not to lodge the power of raising an army with the executive.
The problem is that the warnings about the growth of the military-industrial complex have been forgotten with the US now having an out of control military.  The establishment of a full time, professional army is far more of a violation of what the Second Amendment was intended to protect than the banning of private arms ever will be.

For the Founders, the militia arose from the posse comitatus, constituting the people as a whole and embodying the Anglo-American idea that the citizenry is the best enforcer of the law. "A militia when properly formed," wrote Richard Henry Lee in his Letters From the Federal Farmer, "are in fact the people themselves...and include all men capable of bearing arms." From its origins in Britain, the posse comitatus (meaning to be able to be an attendant) was generally understood to constitute the constabulary of the "shire." When order was threatened, the "shire-reeve," or sheriff, would raise the "hue and cry," and all citizens who heard it were bound to render assistance in apprehending a criminal or maintaining order. The Framers transferred the power of calling out the militia from local authorities to the Congress.

The Anti-Federalists were not pleased. They wanted the militia to remain under state control as a check on the national government. Many feared that an institution intended for local defense could be dispatched far from home. As Luther Martin objected:
As it now stands, the Congress will have the power, if they please, to march the whole militia of Maryland to the remotest part of the union, and keep them in service as long as they think proper, without being in any respect dependent upon the government of Maryland for this unlimited exercise of power over its citizens. "Genuine Information," 1788.
In the "Calling Forth" Act of 1792, Congress exercised its powers under the Militia Clause and delegated to the President the authority to call out the militia and issue it orders when invasion appeared imminent or to suppress insurrections. While the act gave the President a relatively free hand in case of invasion, it constrained his authority in the case of insurrections by requiring that a federal judge certify that the civil authority and the posse comitatus were powerless to meet the exigency. The President had also to order the insurgents to disband before he could mobilize the militia. This was the procedure that President George Washington followed during the Whiskey Rebellion of 1794.

The Second Amendment was intended to make sure that the federal government never totally used its powers to the detriment of that institution. The real killer was not federal neglect or abuse, but apathy by the general populace:
The right of the citizens to keep and bear arms has justly been considered,as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised,that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Times change and ideas become obsolete, which is something the Constitution provides a mechanism for addressing, which is the amendment process.  The Constitution itself was amended immediately upon adoption by the Bill of Rights. In fact, the Heller decision by choosing to say the stated reason for the Second Amendment was unimportant to an analysis of the text have made it clear that the Second Amendment is obsolete.

Why should society be ruled by an anachronistic section of the US Constitution, which has been judicially amended to change its original intent?  Even worse, this is a section of the US Constitution which has long died from neglect.

The only reason to treat this as sacrosanct is if people like bloodletting of a different sort.

1 comment:

  1. Amen. And the modern military industrial complex is the leach that is killing the host, our nation, a drip, a drop, at a time --- while we are told over and over it is making us safer and healthier.

    Your a parasite, NRA and gun manufacturers.