The United States has experienced yet another mass shooting, this time in Nashville, Tennessee at a religious school. Six people died and the killer carried two assault-style weapons and a handgun. As always, the nation will go through another period of impotent "thoughts and prayers" as its citizens will debate the meaning of the 2nd Amendment.

The 2nd Amendment 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 poorly written amendment, subject to all sorts of weird interpretations. When it was being debated in 1789, its intent was clear. 

The citizens at the time were tremendously suspicious of a standing army since their experience as colonial subjects proved to them that standing armies, maintained by a powerful state, represented a threat to liberty. The writers of the constitution therefore wanted the common defense to be maintained by state militias in order to fragment centralized military control and assumed that militias would only be called upon when there was a specific threat to be addressed. 

The Massachusetts Declaration of Rights adopted in 1780 gives a rough idea of what the concerns were: "The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it."

The most important dimension of this concern was the fear of a powerful state. To that end, the states were not expected to arm the militias. Instead, every citizen was expected to bring their own weapons when the militia was called upon. The "original intent" of the 2nd Amendment was to assure that states never developed their own weapons-producing capabilities. 

This meaning of the 2nd Amendment has been lost and its tortured language is currently interpreted by the US Supreme Court as a right of individuals to possess weapons even though the states now buy weapons for their militias (in the US, the National Guard) and the Federal Government regularly purchases weapons to arm the various branches of the US military. Indeed, soldiers in the US military are not allowed to use personal weapons when they are officially deployed in combat. The reasoning behind this prohibition is obvious: massed armies require standardized equipment so that it is easier to provide the necessary training, ammunition, and maintenance of weaponry. And very few citizens could afford to buy their own modern weapons. 

The Militia Act of 1792 makes it clear that citizens were expected to provide their own weapons: "That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good How to be musket or firelock, a sufficient bayonet and belt, two spare flints, and a armed and ac- knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder"

This interpretation of the 2nd Amendment was washed away in the Supreme Court's decision, District of Columbia v. Heller in 2008. The decision was 5-4 and the Majority Opinion was written by Justice Antonin Scalia. That Opinion was summarized as follows: 

"To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to 'guarantee an individual right to possess and carry weapons in case of confrontation.' This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment."

The Supreme Court went even further in its decision New York State Rifle & Pistol Association, Inc. v. Bruen in 2022 and the Majority Opinion was written by Justice Clarence Thomas. In that opinion , Justice Thomas argued that all gun control legislation needed to be assessed in a manner "consistent with the nation's historical tradition of firearm regulation." I personally have no idea what that phrase means. What is the "historical tradition" relevant to an AR-15? It only became widely available in 1963 when the Colt Manufacturing Company sold it to civilians.

The interpretations of Heller and Bruen are hypertrophic and have no logical connection whatsoever with the original intent of the 2nd Amendment. To equate the right to carry an automatic or semi-automatic weapon in a public place to the right to speak freely or to assemble peaceably is dishonest nonsense. Indeed, the right to speak freely is itself limited to speech that does not incite violence. And the invocation of "original" intent is itself nonsense. 

The "original intent" of the Constitution was to codify and normalize the kidnapping and enslavement of millions of people. The "original intent" of the Constitution was to deny women the right to vote. Fortunately, the people of the United States decided that slavery was completely inconsistent with the true aspirations of the Constitution and that the voices of women in governance was essential to a well-functioning democracy. One would be hard-pressed to argue that the slaughter of innocents was consistent with the ideals of "domestic tranquility".

We should repeal the 2nd Amendment since its current interpretation apparently only allows "thoughts and prayers" for those who are mindlessly killed and for those who have lost loved ones. And we should examine seriously the health of a society which holds that children should be protected only by participating in "active shooting drills". That advice resonates strongly with me as I remember huddling under my wooden desk in 3rd grade as adults tried to persuade me that it was an effective defense against a nuclear blast.

The repeal of the 2nd Amendment would leave a vacuum with respect to gun policy. Much would have to be done to fill that vacuum, but I only offer one suggestion on the issue of automatic and semi-automatic weapons. I want to avoid the inevitable controversy over the possible "confiscation" of guns. That policy would never work and would simply aggravate the untenable situation in which we find ourselves. Instead, I suggest a Federal law along the following lines;

1.The sale of any weapon with an automatic or semi-automatic firing mechanism will be prohibited.

2.Citizens can possess such weapons but they can only be held on the property of the primary residence of a citizen.

3.The carrying of an automatic or semi-automatic weapon in a public space will be prohibited and any such weapons found in a public space shall be confiscated and destroyed.

We can debate background checks or the mental health requirements on all other weapons at a future point. But there is no reason why the burden of proving an acceptable solution to gun violence should be borne exclusively by those who want the weapons to be controlled. The burden should more appropriately be borne by those who insist that they have a "right" to possess military-grade weapons. They should be forced to defend that right in the face of all the horror and instability that society faces every day and with stunning regularity. 






                            



REPEAL THE 2ND AMENDMENT

Israel is preparing for a ground invasion of the Gaza Strip and it has encouraged the Palestinians in the north of the Gaza to move to the southern part of the territory so that civilians will not be subjected to what will likely be a very intense campaign.

It is difficult to move 1.1 million people in such a short period of time given that much of the Gazan infrastructure has been destroyed by bombing. Many people in Gaza have no place to go in the bleak southern part of the Strip and Egypt has not opened the Rafah crossing into Egyptian territory. I suspect that Egypt does not want to be responsible for such a huge influx of refugees. And many Palestinians do not want to leave their homes or familiar neighborhoods. Hamas has encouraged the people not to move to the south, which has been interpreted by some as an attempt to use the civilians as a shield from Israeli bombardment.

The more likely explanation for the number of Palestinians who chose not to evacuate is the fear that they could never return to their homes. While Israel has a "right of return" for any Jew who wishes to emigrate to Israel, it has not allowed the more than 750,000 Palestinians who left their homes in 1948 upon the creation of the state of Israel to return. Many Palestinians refer to that episode as the Nabka ("the Catastrophe"). That refusal is a violation of international law as described by the Institute for Middle East Understanding:

All refugees have a right to return to areas from which they have fled or were forced, to receive compensation for damages, and to either regain their properties or receive compensation and support for voluntary resettlement. This right derives from a number of legal sources, including customary international law, international humanitarian law governing rights of civilians during war, and human rights law. The United Nations' Universal Declaration of Human Rights states in Article 13(2) that "[e]veryone has the right to leave any country, including his own, and return to his own country." This is an individual right and cannot be unilaterally abrogated by third parties.

In December 1948, following Israel's establishment and the attendant displacement of approximately 750,000 Palestinians from areas that fell within its control, the UN General Assembly passed Resolution 194, which states, "refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible."

The Palestinian right of return has been confirmed repeatedly by the UN General Assembly, including through Resolution 3236, which "Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return."

There were Israeli settlers who lived in the Gaza Strip after the 1967 war but all 21 Israeli settlements in the Gaza Strip were unilaterally evacuated in 2005. I suspect that many Palestinians fear that depopulating the Gaza will offer an opportunity for Israel to assert renewed territorial control in the Gaza. I doubt that Israel is thinking about such a radical move and most Americans do not seem to be aware of that historical episode. But the Palestinian fear is not far-fetched to a people who suffered displacement. It remains unclear, however, what the Israeli plans for the Gaza are. Given the level of destruction that has already occurred in the Gaza, it is unlikely that anyone will be living comfortably there for an extraordinarily long time.
OCTOBER 14, 2023 - ISRAEL AND GAZA





The US media is focusing on the fighting near hospitals in the Gaza Strip. The Netanyahu government has decided that it is justified in conducting military operations near or against these hospitals because Hamas terrorists are using the hospitals as refuges. The US media has decided not to question this tactic; instead, the media seems to indicate that the attacks on hospitals are simply unfortunate acts of war. The acceptance of this definition of collateral damage is morally reprehnsible.

Collateral damage is defined as injuries suffered inadvertently by noncombatants in an attack on a legitimate military target. The idea of collateral damage was adopted in the 20th Century as violence in war became anonymous with the advent of missiles and bombs which are difficult to target precisely. The doctrine admits the legitimacy of that violence if the intention is only to attack clearly identified military targets.

The phrase should more properly be understood as a euphemism that gives priority to military necessity over the lives of the innocent.

I have no doubts that Hamas deliberately uses civilian facilities to find protection against attacks and that tactic is an abomination. The question is whether that technique automatically vitiates the protections against killing noncombatants. And that question is paramount when we are talking about the use of hospitals as refuges.

To its credit, the Netanyahu government has encouraged patients in hospitals to evacuate, but this exhortation is hollow. Patients go to a hospital to be cured of an injury or disease and it is difficult for people under those circumstances to flee through a war zone. Patients are hostages to their conditions and hospitals are special places designated to provide comfort and therapy. Actions which have the effect of denying that care--including the provision of food, water, medical supplies, and fuel--can never be acceptable. It is also important to remember that none of the patients had any control over how their vulnerability could be exploited by an immoral military tactic.

I also am not sure how much of a military advantage hiding in a hospital provides to a combatant. There are no military targets to attack in a hospital and a combatant would have to leave the hospital to join the fight. Weapons can be stored in a hospital, but, again, they must leave the hospital to be used. I understand that Hamas uses mines to shuttle from a hospital to other areas, but closing off those mines is a better military option since it addresses the tactical vulnerability without the loss of innocent lives. The option is more dangerous for the Israeli military, but it can be attained without noncombatant losses.

There are few actions that diminish the moral authority to wage war more than attacks on helpless people. Such attacks must be condemned in the strongest possible terms.


NOVEMBER 13, 2023
 VINNIE'S BLOG