Monday, July 13, 2009

Cornyn, The Constitution, Guns

Guess which members of the Senate Judiciary Committee, in the opening day of hearings on the nomination of Sonia Sotomayor to the United States Supreme Court, said:

(of two among the Bill of Rights) Judges just haven't enforced them like the people expected them to.

(to the nominee) Would you vote to return to the written Constitution and the laws written by the elected representatives of the people?

If you think logically, you're wrong. Oddly, they were uttered by the same man, Republican Senator John Cornyn of Texas.

Cornyn apparently was confused. First, he implied that judges should take a poll or maybe hold a focus group to determine how to vote- enforcing Constitutional amendments "like the people expected them to." Then, deftly switching gears, the Senator proposes the Justice "vote to return to the written Constition."

On a less contradictory note, Senator Cornyn claimed "the Takings Clause of the Fifth Amendment, the Commerce Clause limitations in Article I, and the Second Amendment's right to keep and bear arms have been artificially limited...."

Senator Cornyn has apparently read the Second Amendment as "the right of the people to keep and bear Arms, shall not be infringed," conveniently skipping over the inconvenient "A well regulated Militia, being necessary to the security of a free State."

Title 10, Section 311 of the U.S. Code explains

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


Section 332 is entitled "Use of militia and armed forces to enforce Federal authority," thereby reiterating a distinction between "militia" and "armed forces."

There was, of course, a time when a militia was needed to protect the citizens of a state. As this 2006 editorial in the Minneapolis Star-Tribune put it, "Having opted against a standing army, the Constitution's cobblers determined that every able-bodied man would serve as a member of a local militia — prepared to respond in unison against invasion."

Now, however, we have an army (and navy and air force and marine corps), with professional soldiers protecting the nation. The armed forces have replaced "a well-regulated militia," rendering the Second Amendment, well, moot. That is, if one reads the Constitution and interprets it as it is written rather than "invent rights that do not exist in our written Constitution" as, ironically, John Cornyn put it.

Banning the private possession of firearms would be unwise- but not precluded by a strict reading of the Constitution. Suggesting that, of course, would be politically masochistic. Until conservatives on the U.S. Supreme Court, however, put aside rigid ideology and instead interpret the supreme law of the land as written, perhaps a Democrat might want to put the Second Amendment in a different context. These hearings provide an opportunity to remind colleagues and the American people that states have a right, legally and morally, to do within reason what is necessary to protect their citizens. In some cases, that means enacting reasonable regulations to address the rampant violence in many areas, violence that imperils even law enforcement officers. Some members of Congress may not understand the United States Constitution, but they ought to understand that.

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