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I mentioned before that my favorite person on twitter is Kurt Eichenwald, a contributing editor at Vanity Fair. He is the writer who put together the mammoth criticism of the modern GOP and poked holes in all of their lies a few months back.

After Sandy Hook, Eichenwald has focused almost exclusively on gun control and brought lots of intensity to the issue. He also dedicated his page to one of the children who was killed and posted the boy's picture on the page as a reminder of the issue.

Today, he tweeted out a link to an article he wrote for Vanity Fair, titled "Let's Repeal the Second Amendment." It's long, brutal, intensely fact-laden, and is the kind of thing that all supporters of gun control should have in their back pocket when dealing with the nuts.

More below the orange croissant.

Eichenwald is not just saying that the country should get rid of the Second Amendment. That could never happen anyway. In fact, none of this could ever happen anyway but (I think) he is using the idea as a device to make an argument about the flaws in the amendment, in the courts, and in Scalia in particular. The point is that the amendment has been twisted beyond all recognition and that we should start over with a new one that represents reality.

The article starts by shooting down the "let's not politicize Sandy Hook" line.

As news of the massacre at Sandy Hook Elementary played out around the country, the mantra from the gun-rights folks was fairly consistent: now is not the time to discuss how the government should deal with controls on firearms. It’s politicizing tragedy to talk about it, they whine.

O.K., I’ll agree. Let’s not talk about policy when it comes to Sandy Hook.

Instead, let’s consider the San Ysidro McDonald’s massacre in 1984. Following the shooting of 40 people at that time, gunnies also said it was too soon to discuss new firearms laws; it would politicize the shooting at a moment that should only be about remembrance, you see. So let’s do it now—28 years is long enough to wait.

Or we can talk about the 21 people shot at the post office in Edmond, Oklahoma, two years later. Or the 35 at Cleveland Elementary School in Stockton, California, in 1989. Or the 20 that same year at Standard Gravure. Or the 50 at Luby’s Cafeteria in Killeen, Texas, in 1991. Or the 14 at Lindhurst High School in Olivehurst, California, the year after that. Or the 25 on the Long Island Railroad in 1993. Or the 15 at Westside Middle School in Jonesboro, Arkansas. Or the 29 at Thurston High School.

Or Columbine. Or Virginia Tech. Or Tucson. Or Aurora. Or Clackamas Town Center, just three days before Sandy Hook.

Or any of the senseless mass murders that have left behind piles of the maimed and murdered—the elderly, students, children, shoppers, worshippers, moviegoers, diners, workers, and even a member of Congress. One young woman—Jessica Ghawi—missed a gun rampage while shopping at a mall by a matter of minutes, only to be killed weeks later at the Aurora movie-theater massacre. Almost 1,000 innocent Americans have been shot in the last 30 years in these bloodbaths. And at each instance, the National Rifle Association and company try to shame us with this “not the time” argument so that we can’t discuss adopting laws to protect ourselves; eventually, the horror recedes, we move on with our lives, and we walk out into the world never knowing whether our heads will be the next to explode after being struck by a madman’s bullet.

After bashing the NRA types for their anti-gun control rants (what he calls their penchant to " belch out that tiresome and frighteningly violent malarkey about prying their firearms from their "cold, dead hands,'"), Eichenwald goes on to point out a number of things about the Second Amendment that I didn't know.

For instance, there are two Amendments, one passed by Congress and one ratified by the states and authenticated by Thomas Jefferson. The first one is the one we know - which he calls "a grammarian's nightmare" - although the second one is the only one that could be considered valid. Still, he says, the courts rely on the first version, which is "incomprehensible under any rules of grammar."

Then begins the long attack on Scalia. Eichenwald makes a strong case that Scalia is a blowhard and an idiot (surprise, surprise) who manipulated the Constitution to end up with the outcome he wanted in the big gun control case where he wrote the majority opinion.

In his ruling, Scalia calls the first half of the Second Amendment a “prefatory clause.” (To get a sense of how grammatically atypical that concept is, run those two words through Google. The vast majority of the entries are quoting Scalia.) The independent clause—about the right to bear arms—is the operative one, Scalia says....

To explain the meaning of the supposed prefatory clause of the Second Amendment, Scalia—who holds himself out as a strict textualist of the Constitution—felt the need to rewrite the Bill of Rights. And this incompetently written phrase does nothing to expand or limit the scope of the amendment, he says; essentially, the words have no purpose. Nowhere else in the Constitution does this supposed blaring of trumpets announcing the about-to-arrive relevant portion appear.

I can't keep going on without violating fair use, but summing up: Eichenwald points out Scalia's manipulation of the word "the people," he details the NRA's attempts to get guns into the hands with people who have been committed to mental institutions, he dug up some NRA membership piece that crowed about how they won in a political fight they publicly moaned about losing, details technology and guns. Then he rewrites the Second Amendment, saying that the original should be repealed and replaced with new language.

He ends the post with another slam at the anti-control people.

Some gun owners—some—will rage about this idea, saying that they have the right to protect themselves. Well, so do the rest of us—the right to protect ourselves from them.
There are some flaws in his argument. He seems to have a little too much faith in the ability of using liability insurance as a means of controlling guns. The insurance companies aren't going to take on the responsibility of making sure that everyone stores their guns correctly. But there are still lots of other important points in it.

It will take you some time to read the whole thing, but make the time. This is the kind of thing that the MSM should be writing more often.

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Comment Preferences

  •  In my mind I distinguish between natural rights (8+ / 0-)

    and political rights. I think all of us have the sense that "the right to a fair trial" is something that exists independent of the political will to enforce it or the popular perceptions. "The right to bear arms" is a political right, because it's in the constitution. It simply doesn't carry that same sense of a natural right, at least for me and for many people.

    Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

    by Wee Mama on Thu Jan 03, 2013 at 12:12:54 PM PST

    •  some here say it is a human right (3+ / 0-)
      Recommended by:
      blueness, Rogneid, WakeUpNeo

      and no, I could hardly disagree more....

      and it is 'god given' too I think?  Not sure why he only gave the right to C18th Americans, but then that is another question again.

      Guns are a menace to C21st US citizens, that I know.  And to those who say guns don't kill, people do - I say that what you need to do then is keep guns away from such people.

      •  There are a few here who believe it is a human (1+ / 0-)
        Recommended by:
        historys mysteries

        right, but that is not a majority view even in the United States. Very few places outside the states think so.

        As to the source of natural rights, I think it can be discussed either from a secular or a religious perspective. One secular approach is Rawls' "veil of ignorance" - what is right is what you would be content with if you didn't know in advance what your situation was going to be. From a religious perspective everyone having "the image of God" is another approach. I can't say seeing in either of those much warrant for gun ownership as a right.

        Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

        by Wee Mama on Thu Jan 03, 2013 at 03:06:44 PM PST

        [ Parent ]

        •  I think we have a natural right to in-kind defense (1+ / 0-)
          Recommended by:

          so that would be, in America's case, a right to own a gun that was as easily operable as the one that someone who wishes to harm me or steal from me could reasonably have.

          In England though, a gun would probably be beyond what you could reasonably expect someone else to have.

          I don't think there's a natural right to blast things for fun.

          Principle before Party! Recession 2013!!

          by GoGoGoEverton on Thu Jan 03, 2013 at 08:32:50 PM PST

          [ Parent ]

  •  What an admission! (0+ / 0-)
    The term “the people” now includes the mentally ill.
    Thanks, Kurt.  That's awfully kind of you.  I'm sure those with mental illnesses will shower with you with praise for acknowledging that they are people.
  •  No. (3+ / 0-)
    Recommended by:
    raincrow, Tom Seaview, PavePusher

    I really don't want to belabor the point, but the Second Amendment did not pop out of existence for no reason whatsover. The idea that every community and every person should have a direct role in their personal security is not something to be disregarded lightly, and in many ways the Amendment makes a statement as to why this Republic is unique.

    The issue is not with the Amendment itself, but in how it has been "read" by successive generations who do not understand its history and rationale, or who have perverted it for the interests of manufacturers or fanatics.  It is up to all of us to responsibly comprehend the rights enumerated in the Constitution and behave accordingly.

    Granted, this is hard to do given the state of discourse on this subject, but difficulty in no way relieves us of the responsibility.

  •  Rather unlikely. (5+ / 0-)

    Unless the Second becomes seen as as much of an abysmal failure as whichever one it was that introduced Prohibition. Which in many ways it is, certainly far more deadly, but without a public consensus or something close to it, not sure how that could pass Congress and the states in anything like the majorities required.

    And face it, as abhorrent as the Newtown child massacre was, there are people, even here, who say that is just the price all of us have to pay for their "freedom", as they understand it.

    And if the rest of us don't like that, too bad.

    They're not "assault weapons"; just call them "Freedom Sparklers".

    by MBNYC on Thu Jan 03, 2013 at 12:22:59 PM PST

  •  "insurance companies aren't going to take on..." (4+ / 0-)
    Recommended by:
    tofumagoo, raincrow, Mudderway, WakeUpNeo

    ...a quick trip thru the googles seems to indicate that there are insurance companies that exclude firearms-related activities from coverage, and other insurance companies interested in taking on additional liability policies for gun owners.

    Considering the nature of insurance companies, it seems likely that gun liability policies would not cover damages resulting from negligent or willful acts involving the use of firearms - including storage.

    It seems liability would rest with the gun owner.


  •  Thanks for the link (2+ / 0-)
    Recommended by:
    Smoh, WakeUpNeo

    a great article and have now passed along

    Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?

    by jsfox on Thu Jan 03, 2013 at 12:41:18 PM PST

  •  Eh. (6+ / 0-)
    In his ruling, Scalia calls the first half of the Second Amendment a “prefatory clause.” (To get a sense of how grammatically atypical that concept is, run those two words through Google. The vast majority of the entries are quoting Scalia.)
    Well, it's clear Eichenwald isn't much of a historian, either.  The expression is quite common in 19th century legal documents for exactly the kind of construction Scalia says it is.

    There are problems with Scalia's historiography, too, but Eichenwald's is sloppy and wrong.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Thu Jan 03, 2013 at 12:50:37 PM PST

    •  nifty tool... (1+ / 0-)
      Recommended by:

      ...a clarification on the historiograhy? the graph seems to show the first incidence in 1825.

      Cheers, my frien'...

      •  Not unexpected. Keep in mind that (6+ / 0-)

        the n-grams program measures incidence in phrases in texts that Google has scanned, so... It's a limited sample, and it tends not to go back much further than that (it's been very difficult for them to scan earlier documents, once you factor in changes in printing type, etc.  Could be worse: its Russian-language graphs are essentially useless pre-1917, when the alphabet changed.)  We use it to guess at rough tendencies rather than absolute usage, and the further back you go, the rougher it gets.  But it was clearly much more prevalent pre-20th century.

        I think it shows a pretty clear tendency: that "prefatory clause" was an understood and used aspect of legal writing, but that, as legal language has changed, people have relied less and less on them when writing policy (statutes are now more likely to contain multi-part explanations of each word, clause, and expression).  That's why Eichenwald had trouble finding it in a google search, but that's not the kind of search he should be doing in the first place, and it doesn't harm Scalia's point the way Eichenwald thinks it does.  Scalia's right on this point.

        Much more problematic is Scalia's own cherry-picked version of how the 2nd Amendment came about, and the existing firearm statutes of the time, which has been addressed by professional historians as a seriously problematic reading.  He's not a historian.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Thu Jan 03, 2013 at 01:12:50 PM PST

        [ Parent ]

    •  But so what? (4+ / 0-)
      Recommended by:
      luckydog, Mudderway, MBNYC, blueness

      As a lawyer, I don't really see any particular significance to what one calls this clause, be it prefatory, introductory, or whatever.  What's important is what it says and means, not how one chooses to name it.

      I also don't see what relevance the use of the term in 19th century legal documents can have.  Ordinarily, that's exactly the kind of "post-enactment legislative history" Scalia would deplore.  If one is trying to discern the meaning of a text written in the 1790s, the descriptive terms people applied to portions of that text decades later just aren't relevant, assuming, once again, that the only thing that matters is the "original intent" of the text's authors.

      So I don't really see that this gets anyone anywhere.

      Just my two cents.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Thu Jan 03, 2013 at 01:12:48 PM PST

      [ Parent ]

      •  Ask Eichenwald. He's the one who made (4+ / 0-)

        that argument.  The only point I'm making is that judicial history recognizes the function of "prefatory clauses", and closer to the original source, in a way that Eichenwald (wrongly) dismisses.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Thu Jan 03, 2013 at 01:14:40 PM PST

        [ Parent ]

        •  But close doesn't count. (1+ / 0-)
          Recommended by:

          That's the point.  If one's an originalist (as Scalia claims to be), then what people say about a text after its adoption isn't relevant to anything.  Yeah, someone writing in the 1840s was "closer to the original source" then we are in a chronological sense, but unless that person was involved in the writing and/or adoption of the provision at issue, then that historical proximity is meaningless.  

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Thu Jan 03, 2013 at 04:32:51 PM PST

          [ Parent ]

          •  I'm not quite sure I understand (3+ / 0-)
            Recommended by:
            luckydog, PavePusher, KVoimakas

            what you're arguing here.  I'm not defending Scalia, I'm saying that Eichenwald has a mistaken impression that "prefatory clause" is some obscure phrase that no one except Scalia has used.  It isn't, but Eichenwald's looking at the wrong sources to begin with, because he doesn't know how to use a search engine properly: it used to be a very common legal term, but google naturally filters to more recent sources.  That's pretty much the limit of my critique.

            As for Scalia's "original intent", I don't even pretend to understand what the limits of that are - not that he sticks to them, anyway - but I do know he uses Blackstone as his guide, and Blackstone outright ignores the prefatory clause in his analysis of the 2nd Amendment.  So there's that.

            Saint, n. A dead sinner revised and edited. - Ambrose Bierce

            by pico on Thu Jan 03, 2013 at 05:53:13 PM PST

            [ Parent ]

            •  Okay. (1+ / 0-)
              Recommended by:

              I take your point.  

              BTW, I'm not sure which Blackstone you're talking about, but if it's the famous English jurist William Blackstone, he died in 1780, well before the Second Amendment was drafted.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Fri Jan 04, 2013 at 12:36:01 AM PST

              [ Parent ]

              •  You're right: my mistake: (1+ / 0-)
                Recommended by:

                I was muddling up two different things.  It's Blackstone who Scalia goes to for the "natural, individual right" thing, but St. George Tucker, who edited the Blackstone edition for American law, who ignores the prefatory clause in his study (and as the Blackstone expert contemporaneous with the Founding Fathers, Scalia loves him some St. George Tucker.)

                There's a good article on this issue by Saul Cornell in the Northwestern University Law Review that tries to make the point that Scalia's use of Tucker is myopic, and that the liberal wing of the court was closer in spirit to both Tucker's and Blackstone's methodology.  It gets into the meaty issue of meaning v. intent, and it's a good read.

                Saint, n. A dead sinner revised and edited. - Ambrose Bierce

                by pico on Fri Jan 04, 2013 at 09:12:50 AM PST

                [ Parent ]

                •  Thanks for the cite. (1+ / 0-)
                  Recommended by:

                  I'll have to take a look at it when I have the stomach for doing more reading on the interpretation of the Second Amendment.  

                  "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                  by FogCityJohn on Fri Jan 04, 2013 at 09:52:19 AM PST

                  [ Parent ]

      •  Thank you for this: (0+ / 0-)
        I also don't see what relevance the use of the term in 19th century legal documents can have.
        I now know to never hire you as my lawyer.
  •  Why would you not try to do it if you believe it? (8+ / 0-)

    Don't get me wrong. I am a hardcore RKBA / personal protection / create a little necessary anarchy kind of gal.

    But if you really do want repeal of the Second Amendment, why would you declare defeat before you even begin the petitioning process? What makes you think you can't push for and ultimately benefit from the kind of generational change that is slowly coming to fruition for LGBT people?

    I would be on the other side of this particular fray, but I continue to think the coalitions you would build, in the process of working for repeal, could successfully advance other leftist/prog social issues.


    by raincrow on Thu Jan 03, 2013 at 12:56:23 PM PST

  •  This is a really bad idea (3+ / 0-)
    Recommended by:
    KVoimakas, theatre goon, PavePusher

    for two reasons:

    First, the Second Amendment probably does not prevent Congress from enacting just about any kind of gun control legislation that could get passed in Congress. Even Scalia's opinion in the Heller case allows for all kinds of regulation of ownership of firearms. The challenge of enacting gun control legislation does not come from the Constitution; it comes from the political composition of Congress. If the Constitution does not prevent us from doing most of what we might want to do, why start by messing with the Constitution? Let's start by enacting sensible gun control legislation--that is a big enough challenge--and then see if any of that is going to be overturned by the courts. Only then might we have a Constitutional problem.

    Second, once you start tinkering with the Bill of Rights, where do you stop? You might want to restrict individual rights to own firearms, a right that a lot of people think is very precious (and in fact if it didn't have its own amendment, a lot of people would think is protected by the much broader constitutional guarantees of the 5th and 14th amendments, and possibly others). But once you amend the constitution for the first time in history to restrict individual rights (unless you count prohibition, but we corrected that mistake), some other group is going to want to restrict the right to an abortion (which by the way is not even mentioned in the Bill of Rights), or gay marriage, or free speech, or the protection from government sponsorship of religion, or search and seizure, or self-incrimination, etc., etc.

    I say, don't mess with the text of the Bill of Rights. Period.

    •  Your second arguementd reminds me of... (0+ / 0-)

      ...a commonly given arguement that I used to hear about why shouldn't pass the ERA.

      Can't mess with perfection.

      •  The difference is (3+ / 0-)
        Recommended by:
        GoGoGoEverton, PavePusher, KVoimakas

        that the ERA would have expanded constitutional rights. I have no problem with amending the constitution to do that. We have done it before with the 13th, 14th, 15th, 19th, 24th and 26th amendments.

        What you have to be careful of is amending the constitution to strip away people's rights.

        •  The 2nd, as interpreted by Scalia, doesn't... (0+ / 0-)

          ...give rights to people, it gives rights to guns.

          There's a difference.

          The 20 children and 6 women who were massacred in Sandy Hook Elementary are people. The 2nd Amendment didn't protect their rights.

          The AR-15 Bushmaster that killed them is a gun. And that gun's rights were indeed well protected by the 2nd Amendment.

          But guns are not people, my friend.

          •  What rights do guns have?nt (0+ / 0-)

            Republicans cause more damage than guns ever will. Share Our Wealth

            by KVoimakas on Fri Jan 04, 2013 at 06:35:02 AM PST

            [ Parent ]

            •  Guns have no rights. (1+ / 0-)
              Recommended by:

              If I owned a gun, I could torture it, I could lock it up forever, and I can even destroy it if I wanted to.

              It is people who have the right to own a gun, and like it or not, a lot of people consider that one of their most fundamental rights.

              Still, the idea that victims of gun violence also have rights is a useful idea in this debate. So whenever someone talks about gun owners' rights, it can be an effective response to say, what about the rights of all those kindergarten kids?

              The point is, you can acknowledge that gun owners have rights, and still support regulation of those rights.

  •  New amendment proposal. (6+ / 0-)

    The right of the people to keep and bear arms shall not be infringed.

    Republicans cause more damage than guns ever will. Share Our Wealth

    by KVoimakas on Thu Jan 03, 2013 at 01:11:00 PM PST

  • And here come the hardliners (2+ / 0-)
    Recommended by:
    a2nite, WakeUpNeo

    to stick their fingers in their ears and scream LALALALALALALALALALA when discussing change in gun laws or interpretation of the amendment.

    You know, one written when it took a trained soldier to fire a round every three minutes, not empty 12 rounds in seconds.

    --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

    by idbecrazyif on Thu Jan 03, 2013 at 01:21:13 PM PST

  •  no other amendment (5+ / 0-)

    says "shall not be infringed" either

  •  Eichenwald Article - "Repeal 2nd. Amd." (0+ / 0-)

    Regardless of the merits of Mr. Eichenwalds article, there are 2 major obstacles, rendering chances of altering 2nd. Amd. highly unlikely. 1: Article 5 of Constitution describing amendment process. 2: US Political demographics . See Art. 5 to understand process. Then consider chances of support required of 2/3 legislators of 38 States, (25 of which are Extreme HARD CORE pro 2nd Amd ), needed for Constitutional Convention & subsequent ratification. Considering that "Reasonable Restrictions" clause of proposed amendment is open to "interpretation", & that USSC can & has been "Stacked" ; the chances of ratification of such Amendment by 38 States is Slim to NONE.

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