http://danvillesanramon.com/blogs/p/print/2013/01/23/absolute-on-the-rocks


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By Tom Cushing

Absolute, on the rocks

Uploaded: Jan 23, 2013

Wow – and I'm referring not to the privately paid-for Inaugural gown, which was stunning enough, but did anyone happen to catch the actual Inaugural speech – especially since it was not a school day? It was beautifully crafted and delivered; please disagree with the message if you must, but it was, even in the words of conservative columnist David Brooks, the best of the last half-century. Most broadcast pundits got it wrong, as usual – the President's message was not about civil rights, but the most clear-eyed exposition of what binds us together as Americans that I've heard in my lifetime. I thought Fox's Charles Krauthammer came closest to understanding its significance, in a kind of grudging fashion.

Interestingly, there were 53 appearances of the term "we," and only two of the word "I." You can read it here: http://www.thedailybeast.com/articles/2013/01/21/full-text-of-president-obama-s-inaugural-address.html or see it here (after a commercial): http://www.youtube.com/watch?v=zncqb-n3zMo If you love the language, check it out.

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But I digress. ;-) The coming conversation about gun violence may be the most important we will have as a nation, and it'll be useful from the outset to avoid a threshold misconception. That is that a constitutional protection found in the Bill of Rights cannot be limited in any way, without being lost completely. The right at issue, of course, is found in the Second Amendment. It reads as follows, in its entirety:

"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."

A bit of history: the former colonists, as they debated the scope of their new government, were loathe to substitute a new tyrant for the King whose Redcoats they had recently routed. So, would they be loosely affiliated or tightly bound to a central government -- and if the latter, how could they be protected from an over-reaching "new boss" (same as the old boss)? The Bill of Rights – protections for individuals against the powerful predatory instincts of their government – ensued. Each has been interpreted many times by the Supreme Court, and every one of them has limitations of one sort or another.

I have profound respect for the First Amendment, for instance, and consider it to be the single most fundamental guardian of our liberties as a free People. A few parts of its several protections come pretty close to being absolute limits on the power of government. Yet even its guarantees are subject to many reasonable restrictions – political messages, for example, can be banned from city streets, if blared from sound trucks at 3 AM. And you famously can't falsely yell "Fire" in a crowded theater, without punitive consequences. There is generally some balancing of the legitimate rights of individuals with those of the broader society. Indeed, there has only ever been one Supreme, if memory serves, who believed in so-called First Amendment absolutism (Hugo Black).

So it is with every other Bill of Rights protection, from searches-and-seizures to self-incrimination, and including, the right to keep and bear arms. In fact, the Second Amendment has long been considered the Constitution's "red-headed step-child," because its case law is sparse and its jurisprudence so relatively under-developed.

That is because for most of our history, the Court held that the so-called "militia" clause controlled the "rights" clause – such that the Amendment's effect was limited to matters involving those sort-of proto-military units, which were akin to a national guard before there was a standing army. Gun-control laws, then, were fought-over solely on the basis of whether they were a good idea, and not on whether they abridged a constitutional freedom.

Then in 2008, a 5-4 majority of the Roberts Court overturned that precedent, holding in the DC v. Heller case that individuals do have a constitutional right to their guns. Two years ago, the same majority elevated that right to "fundamental" status, meaning that the Court will require some as-yet-undefined but serious showing of a governmental interest before it will allow limitation of that right. But nowhere did the Court state that this spanking new right was absolute, or that no countervailing governmental interest could overcome it. They easily could have done so if they believed it.

It is an indication of just how under-developed the thinking is in this area that we don't have such a test in-place. Nor do we know upper limit to the lethality of the weaponry covered by the right. While I'd prefer "musket," Justice Scalia in an interview ruled out tanks (only because they can't be "borne"), but not bazookas, or surface-to-air missiles ("…that will have to be decided."). The point being that most of the law of the Second Amendment has yet to be written, and it almost certainly won't contain any "absolute" language. So, when you hear a speaker wax rhapsodic about an assault on our sacred Second Amendment traditions, or the like – that's your first clue that the speech had its beginnings in pasture leavings.

Postscript: I wrote most of this yesterday – honest – and on today's news, right on cue, comes a report of Wayne La Pierre of the National Rifle Association calling the Second Amendment – wait for it – "Absolute!"

So my question is this: I am not a guns guy personally, but I know and have deep respect for several responsible gun enthusiasts. So tell me, gun folk – does the NRA really represent you in this conversation? Is there no other organization that has a better strategy than to stake its claim on the far side of sanity and snarl at anyone who approaches? This would seem to be a perfect opportunity for such an outfit to come in, advocate for a reasonable approach over which we can all break bread, and "absolutely" steal the thunder of the NRA. Does such a group exist? Shouldn't it?

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It'll be hiking and general outdoors season again soon, and I want to direct readers' attention to Susan Savod's excellent article about Lyme Disease and associated ailments "So Sick From a Tick," which appeared in this fine publication back in the ink-on-paper era. It went 'viral' among folks with mysterious ailments, and Sue has received appreciative feedback from all over the continent, and beyond. The most important things you can learn are prevention and early treatment so that it never gets a head start. Her article is here: http://www.danvilleexpress.com/story.php?story_id=6347

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