Monday, August 11, 2014

"'Arguing In Front Of The Supreme Court' Fantasy"

Misters and Madame Justices… or something like that… you can already tell I have never done this before… I do not even know how to address you.  But you know who I’m talking about – you nine guys in the chairs.  

I appreciate your allowing me to do this, as I am not even an attorney.  Though I did watch Law & Order for twenty years. 

Plus the reruns. 

You people should know that I am humbled and sincerely grateful for this opportunity.  What a country this is, where the most ordinary of its citizens can stand here and argue before the Highest Court in the Land.

If only in my fantasy.

I am here to talk about the Second Amendment to the Constitution of the United States.  I imagine you are pretty tired of hearing about it.  But maybe I can inject a previously unmentioned wrinkle.  At least I haven’t heard it mentioned, though I could have missed it watching a ballgame.

My most cherished hope is that at the end of this presentation, you will say – perhaps not all of you but hopefully a few – “Thank you, Mr. Pomerantz.  I never thought of it that way.”  Or at least not have me arrested for wasting your time.

Okay, let’s dive right in. 

At the risk of boring you:  “The Second Amendment To The Constitution of the United States”:

“A well regulated militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

You know, there has been longstanding campaign to get government to say things in fewer words.  This “little beauty” could have used more words.

Anyway, whatever.

Okay here’s my question.  The Framers of the Constitution have allotted an entire amendment making sure that a citizen’s right to keep and bear arms not be infringed upon.  Fine, I get that. 

But when I hear that, it sounds distinctly like, “Somebody’s trying to infringe upon the citizen’s right to keep and bear arms, and we’re going to insert an amendment into the Constitution guaranteeing that they can’t.”
Let’s think about that.  If there was no identifiable danger of a citizen’s right to keep and bear arms being infringed upon, why then would you need an amendment to make certain it didn’t happen?

The question is:

Who exactly was out there opposing the people’s right to keep and bear arms? 

And while we’re at it, why did the government care whether the citizenry had a right to keep and bear arms, or they didn’t?  I mean, they were working really hard to preserve that right.  What exactly was their interest in the issue?  Is it because it’s guns?  It seems like it, as there is no Constitutionally equally protecting right to own a harpsichord, or a sack full of weevils.

What I am trying to do here is to get into the heads of the Framers of the Constitution, to figure out what their explicit interest was in insuring, via the Second Amendment, that the citizens were not impeded from their rights to keep and bear arms.

RECOGNIZED “ORIGINALIST” ASSOCIATE JUSTICE:  “I didn’t know you were such a passionate “Originalist” thinker, Mr. Pomerantz.”

“I am today.”

And by the way, I know this is my fantasy and I am entirely in control of it, but I still appreciate you for not interrupting. 

“I would in my fantasy.”

Okay, back to the issue at hand. 

If you want to understand the government’s interest in its citizens’ not being impeded from keeping and bearing arms, it is instructive, I believe, to investigate what exactly those citizens were using the arms whose right of ownership the Constitution was determined to keep from being infringed upon for?  There had to be some reason it mattered to them.  Let’s figure out what it was.

Okay, so for example, the citizens kept and bore arms for hunting.

Okay, good.  And was anyone at the time committed from stopping them from doing so?


Any people who vote?


Okay, then.  Nobody’s stopping citizens from keeping and bearing arms for hunting.  So at least in that regard, there would be no need for a Constitutional Amendment guaranteeing they could. 

“Is anyone trying to infringe on the citizen’s right to keep and bear arms for hunting?” “

No, sir.” 

Therefore that cannot be the reason that amendment is in there. 

The same goes for target shooting.  Who exactly is against it? 


Who other than inanimate pieces of paper? 

THE TARGETS:  (RUEFULLY)  “Paper never gets to vote.”

Since nobody in the Eighteenth Century would reasonably want to stop anyone from keeping and bearing arms for the purpose of hunting or shooting at targets, those cannot be the reasons for the necessity of the Second Amendment.  So what then could that reason be?

Do I hear “Personal Safety”?

Sure.  You want to be able to protect yourself.  But is that really the government’s business – to make sure you are not impeded from having a gun for protecting yourself?  And again, who would that be who’d have an interest in infringing your right do so?


Stop it.

Nobody would argue that you do not have a right to protect yourself.  But since no one is apparently preventing any Eighteenth Century citizen from doing so, why is the government issuing an Amendment making certain that you can?

Not for hunting.  Not for target shooting.  Not for “Personal Protection”, which anyway is your own business, and not the government’s.  (You may have a personal aversion to fire arms, believing you are more likely to shoot yourself or a loved one than someone trying to make off your stuff.  Does the citizen not have the right to say, “Thanks for the Constitutional protection but I think I’ll pass”?  I believe they do.)

What then is left?  Why would the government, through the enactment of the Second Amendment, insist that its citizens not be impeded from keeping and bearing arms?  What is their urgent and specific interest in this matter?


“A well regulated militia, being necessary for the security of a free State…”

Having recently overthrown the despotic dominance of England, the Framers were concerned about tyranny, either external, or from Washington.  (Let’s leave out if they were paranoid or not; that was their concern.)  And so, “ …for the security of a free State”, to oppose potential tyranny, state militias were established, and in order for those militias to be “well regulated”, they needed their citizens to report for their “militia duty” with necessary equipment to do so.

“I am here to serve in the militia.”

“Terrific.  Where’s your gun?”

“What do you mean?”

That simply wouldn’t work. 

(UNARMED MILITIAMAN)  “Stop in the name of the glorious state we’re living in!”

The tyrannical aggressors see that the militiamen are unarmed and they walk right in.

The militiamen needed to have guns.

So they did something really crafty, as the government often does.  Instead of insisting that “In order to productively serve in the militia, you have to go out and buy a gun” – which is almost another form of a tax (like you are required to buy health insurance) – the Amendment was worded to make it sound like they were doing something entirely altruistic.

“We, with this Second Amendment, are protecting your personal freedom by making certain that nobody has the right to infringe upon your right to keep and bear arms.”

Even though nobody at the time was trying to.

Except for their militia service – where it really helped if you had a gun – there was no indispensible reason the government needed its citizens to keep and bear one.

And there is similarly no reason today. 

(In fact, there is even less reason, as there are no longer any militias.)

I thank you for your time, and, except for the Justice who fell asleep, your attention.

CHIEF JUSTICE:  ‘Thank you, Mr. Pomerantz.  The issue is submitted.”

(And summarily rejected, 5 to 4.)  


Wendy M. Grossman said...

I think it's clear that the mental model the Founding Fathers had was a King, whose power had to be limited. A well-armed milita would mean that a well-armed King and his forces could not overwhelm the country. This is not a modern threat, I agree.

But did you know that you don't really argue in front of the Supreme Court? You submit all the briefs and stuff, and your appearance before them is limited to half an hour? In which they ask you the questions they have and allow you to explain those points. In some controversial cases they can extend the time limit.

So, we'll have that argument in writing, please, fully referenced.


Norbert Duran said...

no mas!