I have reworked, and hopefully upgraded, this piece. What do you think? Is it ready for Senatorial adjudication?
“My Arguing Before 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. So I am not entirely a novice.
I am here today to talk about the Second Amendment to the Constitution of the United States. I imagine you are pretty tired of hearing about it. But perhaps I can reignite your interest with a previously unmentioned new 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 have never thought of it that way.” That would really give me a thrill. I got excited just saying it myself!
Okay, let’s dive right in.
At the risk of boring you with what you already know, “The Second Amendment To The Constitution of the United States” 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’s been a longstanding campaign to get government to say things with fewer words. I have to tell you, this Amendment could have benefitted from more words.
Okay, so, anyway.
It appears, judging from the Second Amendment prohibiting infringement, that the Framers of the Constitution, a government committee, were seriously concerned about citizens’ losing their right to keep and bear arms. My first question is:
Who exactly was it that was so threatening the citizens’ right to keep and bear arms that it was deemed necessary to insert an amendment into the Constitution saying, “Sorry, folks, you cannot do that.”?
My answer is: I don’t know. It seems like nobody, but I could be wrong. Besides, there is a considerably more important question. And that question is this.
Why did the government care… let me put this more emphatically… what was the big frickin’ deal – pardon my language – to the government that its citizens not be prevented from keeping and bearing arms?
It must have been important to them; they made up an entire amendment about it, it’s up there with “Free Speech” and no quartering soldiers in people’s houses during peacetime without their permission. That’s a pretty big deal!
The question is, why did it matter to the Framers whether the citizens we were able to keep and bear arms, or they weren’t? Do you know what I’m saying?
What I am trying to do here is to get into the heads of the Framers of the Constitution to determine those really smart people’s original intent concerning the Second Amendment.
RECOGNIZED “ORIGINALIST” ASSOCIATE JUSTICE: “I didn’t know you were such a passionate ‘Originalist’, Mr. Pomerantz.”
I am today, Justice… sorry, I’m a little nervous and I momentarily forgot your name. Though not your reputation. So, although this is my fantasy and I am entirely in control of it, I nevertheless appreciate your not bombarding me with interruptions.
“I would in my fantasy.”
Good one. Okay now, back to the situation at hand.
The question is: Why did it matter so much to the Framers whether the citizens’ right to keep and bear arms was infringed? And by “arms”, I think we can all agree that they meant firearms. No quibblers? Terrific.
Now I’m thinking, to answer the question of why the Framers wanted to make certain citizens would be able to keep and bear their firearms, it might be illuminating to consider what specifically those citizens were using those firearms for? Good idea, yes or no? I shall take your silence for “agreement”, and move on.
We know that many of the citizens kept and bore arms for hunting.
You have to feed yourself. Maybe the government wanted to make certain that you could. And, let it herein be stipulated: Hunting animals requires a firearm. It is very rare that animals die of natural causes right in front of you. And if they did, would you really want to eat them? Just a little joke, but you’re not laughing, so…forget it. Though it is actually kind of funny.
The thing is, that in the Eighteenth Century, a lot of people – particularly inhabitants in major municipalities – did not hunt. They bought their food, or bartered for it. These citizens – and we’re talking a substantial number of Americans – therefore had no need for Second Amendment firearm protection to make sure they could hunt. Because they did not do that. In fact, a lot of “city people” did not even own firearms.
Consider the citizens who lived near lakes and rivers who preferred not to hunt in order to feed themselves, but to fish. You do not see any Constitutional protection for them. The Second Amendments stands mute on “the right to keep and bear arms, as well as fishin’ poles.”
What about vegetarians, who snip foodstuffs off trees, bushes, vines and fruit-bearing shrubs? Are we to understand that, since it goes unmentioned in the Second Amendment, it is acceptable to infringe upon vegetarians’ rights to own a really good pair of gardening shears? It could be, but why? Those guys are trying to feed themselves too.
It would appear, therefore, that the Second Amendment’s guarantee that citizens can keep and bear firearms is not about the government’s interest in making sure they can feed themselves. It is about keeping and bearing firearms.
So what else did they use them for?
Well, some citizens liked target shooting.
Really? A Constitutional Amendment to insure target shooting? Is that a major concern to the government – that citizens not be prohibited the wherewithal for competitive firearm contests? Or shooting at all, for that matter. I find no statutes requiring that the American citizenry take target practice. You’re a good shot, or you’re not. A governmental concern? They don’t seem to think so.
Not for being able to feed yourself, and not for recreational target shooting. What then, is the explanation for and justification…also for…the Second Amendment?
Do I hear “Personal Safety”?
Sure. You want to be able to protect yourself. But is that any more the government’s business than to insure you can hunt animals or consistently hit what you’re aiming at? We know there is more than one way of protecting yourself. Yet the Second Amendment makes no mention of protecting a citizens’ right to learn effective self-defense techniques. Or successful conflict resolution. It is only about firearms.
Firearms is the only product whose right to ownership is protected in the Constitution. The question is: Why does the government care if we have firearms?
“A well regulated militia, being necessary for the security of a free State…”
Wait a minute. I think maybe we found something.
Having recently overthrown their English oppressors, the Framers of the Constitution were intensely concerned about the prospect of tyranny, from abroad, or from the nation’s capital. Let us leave out if they were paranoid or not; that was their business. Besides, where does it say paranoids are prohibited from participating in the legislative process?
To oppose potential tyranny, state militias were established, and “for the security of a free State” those militiamen needed to report for duty with at least the minimal amount of equipment.
“I am here to serve in the militia.”
“Great. Where’s your firearm?”
“What do you mean?”
That simply wouldn’t work. The militiamen needed to have firearms. Otherwise, the
tyrannical oppressors would just laugh at them. And march right into their state.
It seems to me the Framers of the Constitution did something really crafty here. Instead of insisting that, in order to productively serve in the militia, everyone was required to purchase a firearm – which if you look at it is a form of a “Gun Tax” – you know, like you are required to buy health insurance – the Second Amendment was cleverly worded to make it sound not like a governmental obligation, but like they were instead guaranteeing a Liberty! It was like,
“How dare anyone try to infringe my right to keep and bear arms! (Even though nobody was.) I’m getting one!”
Those Framers were geniuses. We’re talking primo Eighteenth Century P.R.
Summing up, the Founders had a legitimate interest in an effective militia, and an effective militia required firearms. The Second Amendment is, therefore in my view, included in the Constitution not to protect the individual citizen’s right – as is currently the law – but to guarantee an effective militia. A substantially diminished consideration, as there are no longer any militias today.
I’d like to thank you for your time, and, except for the Justice who fell asleep, your attention. And with that, I respectfully rest my case.
CHIEF JUSTICE: ‘Thank you, Mr. Pomerantz. The case is submitted.”
(And summarily defeated, 5 to 4.)