Thinking About the Second Amendment; A Primer For Enlightened Metropolitan New Yorkers
It is a small thing. Just a sentence-long paragraph of 27 words, but following the most hallowed first one, the Second Amendment to our the United States Constitution is front and center, of compelling gravity and importance: “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."
Despite its inclusion in the nation’s chief body of laws since its inception in 1789, perhaps no other amendment has provoked so much discussion and debate in the general media and in the public. It is not the intention of this article to present the history of the law, or restate the various justifications for the presently expansive interpretation by the Supreme Court of the United State (SCOTUS) or for the position of those advocating a more limited right to bear arms. This review is related only to how those of us residing in the State of New York and much of the northeastern section of the country might consider the issues, in light of the restrictive approach to gun ownership and possession maintained by New York City and New York State, and the generally permissive approach favored by many governments in the American South and Midwest (and supported by considerable numbers of private citizens there and in this area as well).
Much of the controversy waged in federal and state courts has had to do with whether the wording of the amendment requires that arms be for use by a citizen’s militia or other collective body to protect the general public, or whether it confers a right for citizens’ to utilize guns for other purposes (self-defense, defense of home, as well as sport and hunting). As interpreted by the SCOTUS, there is a private right held by individual citizens of the nation and the states to possess firearms for self-defense. This right is presumably to be exercised against foreign threats (including invading armies, terrorists, loosely organized guerrilla forces, etc.) and domestic ones like criminals, home invaders as well as presumably, a hostile state or federal governing authority.
To most people I know in the area of lower Westchester County, New York, this interpretation is strange. After all, how likely is our region, the sophisticated center of the nations’ finances and communication to accept a general right to individual self-protection with “firepower?” Threats by evildoing, lawless individuals and groups; even sovereign governments or stateless entities seem so foreign to our daily business. One can almost hear the cry, “And what person in his right mind would attempt to protect himself with gunfire in so crowded and congested a place as metropolitan New York City?” The skepticism is entirely predictable; understandable even. But in light of local history, not necessarily well founded.
New York was the scene of many of our most profoundly bloody battles during the struggle for independence from the distant British monarch and Parliament. The contest of the entire war was fought at Brooklyn Heights (of all places!) in what became known as the Battle of Long Island. The fighting continued into Westchester County at White Plains; the conflict’s turning point was probably General Burgoyne’s surrender at Saratoga in 1777.
During the Civil War, New York City was the site of anti-draft riots; a hotbed of pro-Confederacy sentiment owing to its stake in interstate trade with the South and international commerce. In 1863, the anti-war movement led by Copperheads and “Peace Democrats” provoked pitched battles on crowded Manhattan streets that claimed the lives of 120 and injured 2,000; many victims scapegoated were defenseless free blacks. A series of plots were hatched to set off bombs and fires though most ended in failure.
New York has also been a flashpoint of wartime intrigue and conflict in more recent times, due its prominence and proximity to the German war machine in World War II, the city and its environs saw numerous attempts to bring the war to the continent. The most notorious was the landing of six Nazi saboteurs at Amagansett on Long Island determined to sabotage industrial industrials and wreak havoc on the public. Fortunately, the perpetrators were betrayed by one of the conspirators, rounded up and most of them executed following a military tribunal “purpose-built” by President Roosevelt’s executive order (Executive Proclamation 2561). Numerous Nazis and fellow travelers, including dressmakers, draftsmen, diplomats and double agents, initiated other unsuccessful espionages.
Of course in the present time, the metropolitan area has too frequently attracted the attentions of killers and insurrectionists, from Eastern Europe, and Latin America, to the Middle East and South Asia. Radical Islamist bombers piloting commandeered civilian airliners brought down the Twin Towers on 9/11 2001. In 2010 at Times Square general destruction and injury to possibly thousands was averted only after the fortuitous noticing of the suspect vehicle by two street vendors.
Threats to domestic safety and tranquility and security on our streets, thoroughfares and public accommodations are real. Last Friday’s murderous rampages in Paris give graphic evidence of the dangers to civilians gathered in crowded public spaces like stadiums and theaters. The supine helplessness of the innocent victims, and the scarcity of law enforcement, poised to strike at shooters, bombers and suicide bombers surely must give pause and wonder as we ponder our own safety. Concertgoers were reported to have publicly “Tweeted,” begging for an armed police raid on the venue!.
Traditionally, Americans in the enlightened Northeast have been oblivious to such dangers, but current political and logistical considerations should compel ordinary citizens, unarmed, disarmed, even pacifist to appreciate the risks and to look anew at the utility of wider access to gun ownership.by responsible individuals. Is this a matter for only hunters, collectors and survivalists now?
To comprehend the connection between firearms possession and ownership, and the safety and security of Americans in their homes, at work and even at school and at leisure, one must resort to the historical record. And for the ordinary inhabitant of our enlightened environs, a dollop of “empathy” for the interests of others not necessarily in their economic station or geographic region would facilitate a more logical and principled inquiry.
Consider the lonely shopkeeper, peddling his wares in low-income city neighborhoods. Or the lone commercial employee obliged to travel the long stretches of New York State Thruway in order to service her accounts. How about the single mother of children in a marginal area required to do her domestic and child-rearing chores by herself or in the company or her minor children. What about the residents of remote farming and forestry outposts “tied to the land”; on their own, or in the company of family or employees for the completion of chores without benefit of a police or sheriff’s station for as much as 114 miles for one Alaska hamlet and the wait of one to two hours for the arrival of any police presence for some residents of the Navaho Nation of Arizona?
Once the stakes are placed in perspective, and given “flesh” of the concerns of working people, the purpose of a useful and workable gun policy becomes evident. For them, access to pistols and revolvers, long arms (rifles) and shotguns, may be a matter of self-protection, hunting of game and wildlife for the feeding of a family, or simple component of sporting life. Firearms customs may be as old as the communities themselves, and their purposes as complicated and varied as each individual owner’s self-story.
Minimizing the hysteria and conjecture that dominates public discussion by both proponents and opponents of arms rights makes the discussion as subtle and sublime as the discussion of any other right contained in the first ten amendments of the federal Constitution: the Bill of Rights. (And also a recognized right on the state level, as evidenced by Second Amendment-like provisions of the United States Constitution in the constitutions of 44 of the 50 states; a 45th state, New York, provides a modified right to firearms by statute).
By itself and placed in the context of our founding documents, the constitutional provision stands as a model of singular and clear purpose. The right is part of our history, our national folklore, our cultural identity and our tradition of empowered republican democracy. Let our European friends from the constitutional monarchies of Sweden and the United Kingdom, for instance, mock the cowboy-hillbillies of our founding mythology. Acknowledging the murderous excesses of the Native Americans does not detract from the incredible Creation story of our nation from wilderness. The fact is that one of the greatest emancipation stories in European history emerged from the chaos of dynastic regicide and Robespierrean-communalist insurrection. France’s final ascent from sectarianism to nation-wide enlightenment is replete with stories of violence and military excess; but also, it reflects the emancipation of a free people and deliverance from anarchy and reaction thanks to a mobilized populace and Napoleon’s unprecedented creation of a standing army by draft.
Further, it may be argued that not only in the United States but also throughout the world, private action with mechanical arms has freed more people than all the rhetoric of countless revolutions, rebellions and insurrections. And without glorifying violence, we can certainly appreciate the contributions that armed individuals and citizen armies have made to human progress over bigotry, imperialist hegemony and economic repression.
So does gun ownership and possession in our country deserve so hallowed a place in our lives?
Paloma Capanna, of the 2nd Amendment Coalition believes it does. Ms. Capanna, an attorney and public policy analysts for several groups of gun owners and rights activists ((SCOPE Legal Defense Fund, Second Amendment Foundation, National Shooting Sports Foundation) among others) has led a legal campaign against excessive and unconstitutional gun legislation, and represented owner-plaintiffs in related key New York State lawsuits.
Her chief present objective is ending what she terms the “war on law-abiding gun owners” by New York Governor Andrew Cuomo and overturning the widely trumpeted SAFE Act of 2013. Advertised as his signature piece of legislation, akin to the Obama Administration’s Affordable Care Act of 2012, Cuomo has travelled the state, literally running a “victory lap” along the Thruway hosting duplicate, ceremonial legislation signings.
The legislation is lengthy and involved, but for our present purpose, it is sufficient to note that it attempts to limit firearms owner prerogatives (“reduce the availability of assault weapons and deter the criminal use of firearms”) according to an accompanying memorandum by requiring registration in a statewide data base of, with severe penalties for failing to obey. Significantly and unusually, the bill cited no research materials and accepted no testimony after being rushed through a compliant state legislature as a “message of necessity.”
The issues raised are complex, involving matters of due process, self-incrimination, statutory construction and even linguistics and logic. The entire notion of “assault weapons” is fraught with misunderstanding; the phrase is philological doublespeak; an artificial construction existing nowhere in the professional lexicon of firearms design, manufacture or even sales and marketing. Statutory use of the term “assault weapon” resulted from the fevered response of the media to a terrible personal tragedy and the equally fevered rush of politicians to not “just stand there, but do something about it” without regard to language, law or legislative draftsmanship. The restrictions of space prevent a full critique of this legerdemain. It should be sufficient to point out that rush treatment of any bill, affecting fundamental rights under the Bill of Rights, is unheard of. According to the Albany Gazette website,
During the Cuomo Administration alone, messages of necessity have been used to expedite the passage of same-sex “marriage” legislation; the NY SAFE Act; casino expansion; and the legalization of medical marijuana, as well as a variety of budget bills. None of these measures required expedited passage due to emergency circumstances.
No reconstruction of the circumstances at the time of the bill’s passage could justify a claim of emergency. Of course, the shootings at Sandy Hook barely a month prior provided an impetus, but in no way could so drastic a trimming of Constitutional rights be considered a logical, studied and measured response to an urgent public necessity; that a bill was proposed and passed without pause for dedicated research concerning fundamental rights only proves that New York politicians were driven by political “necessity” and nothing else.
If Cuomo and Company’s actions can be distilled into a rule, perhaps it is this: “Not for anything, not public safety, due process or even basic considerations of logic and fairness will New York’s professional elected class be deterred from exploiting local or national tragedy to its political advantage”
Additionally, the law has provoked an unprecedented incidence of civil disobedience among the intended registrants. Studies by the 2nd Amendment Coalition have revealed that owing to the hurried production of the document, thousands of owners of the dubiously cited “assault weapons” through confusion or intent have likely failed to register thousands of firearms. “The assault weapons registry morphed an entire segment of the population of law-abiding gun owners into overt oppositionists to governmental authority and at risk of criminal charges,” according to its “White Paper Series - 2015 / THE NY ASSAULT WEAPONS REGISTRY; ANOTHER FAILED POLICY OF CUOMO.”
Even more convincingly, the governor’s office ignored the experience of the Canadian federal government. After passage of a “long-gun” (rifle) recording requirement in 1995, the Public Safety Minister said, “It does nothing to help put an end to gun crimes, nor has it saved one Canadian life.” So, the cost of $1 billion and the apparently successful compulsion of 75% of Canadian sportsmen and women saved not a single soul from errant or criminal gunfire.
The intrusions upon the Constitution of the “Safe Act” are manifold. Those who choose to exercise their Second Amendment rights have serious claims of their own. New Yorkers presently unconcerned or uninvolved with the Second Amendment will be sorry to learn how the sanctity of homes, private property, confidentiality of personal information and freedom of expression under the first, fourth and fifth Amendments and other Constitutional provisions have been compromised by the governor’s and legislature’s ambitious political agenda.
Organizations like SCOPE, the 2nd Amendment Coalition, and in certain circumstances even the American Civil Liberties Union were established to protect all New Yorkers from such Constitutional threats as they are realized, a laudable offer of civic defense. But will New York’s cosmopolites accept the help?
Stephen I. Mayo is an attorney, owner of Mayo Linoleum Works LLC, host of “The Steve Mayo Show” with Cornelia Mrose on WVOX radio 1460 AM, Mondays from 6 to 7 PM (www.thestevemayoshow.com) and legal counsel to the Westchester County Tea Party. He is not embarrassed to be known as a Republican.