Sunday, January 22, 2017

The Constitution was the internet of its time

Returning to the US at age sixteen, having grown up in various countries in South America, Africa and Europe, I was, for a number of years, puzzled by the seeming primitiveness of the Second Amendment guaranteeing the right to ownership of guns. However, there were many aspects of America which I had to puzzle through at that age and at that time, the Second Amendment was by no means the greatest in its inexplicability. Another mystery for me, at that time, was why the Second Amendment was not treated similarly as the First.

To an adolescent's reading, all those rights seemed to be of a like in the explicitness by which they were guaranteed in the Constitution. But in the mid- and late-1970s, guns were regulated in a fashion not extended to speech or assembly or religion, etc.

That second mystery sorted itself out on its own. As became apparent in hindsight, my teenage observation was correct that the First and Second Amendments were being treated differently even though they represented the same guarantee. In a series a Supreme Court cases, culminating in District of Columbia v. Heller, it was decided that the Second Amendment did represent an individual right to keep and bear arms for self-defense.

But what about that first mystery? Why, in a modern society, should people need, much less be guaranteed, the right to bear arms? That was a long, and perhaps not completed, evolution in my understanding. With greater reading in American history and the philosophical experiment that was the Constitution, I did come to an understanding that, to some degree, the Second Amendment represented yet another check-and-balance in the complex mesh of checks-and-balances that is the Constitution.

The power of the State in part rests on its monopoly of sanctioned violence and the Second Amendment can be seen as deliberate mechanism that limits that monopoly.

OK - that makes philosophical sense but it was still difficult to reconcile with the toll taken by an armed citizenry.

Another dawning awareness of the possible sense of the Second Amendment can best be illustrated by an incident related by Tom Wolfe.
“He [Gunter Grass] sounded like Jean-Fran├žois Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.”
Why does left- and right-wing fascism manifest primarily in Europe (and elsewhere) and not in the USA? In Europe, the State(s) do explicitly restrict access to arms solely via the state. There are likely many other reasons why the dark night of fascism is always descending in the United States and yet lands only in Europe but one cannot ignore the possibility that indeed, and uniquely, that the Second Amendment does in fact function as a restraint on the State.

This secondary view of the Second Amendment is that the individual right to bear arms is not only a guarantee against the State's monopoly on violence but that it also represented something of a tactical-strategic trade-off. Yes, with individual right to arms ownership, you are going to have more civilian deaths on a yearly basis than in other modern countries. But at a strategic level, that civilian loss of life has to be set-off against the apparent frequency in which all other modern societies tip into totalitarianism with the consequent loss of life attendant to that tragedy.

In a recent conversation, I characterized the US Constitution as the Internet of its era. It is designed to route around damage via subsidiarity. It is a contraption of checks-and-balances, any one element of which can be justifiably criticized (Second Amendment, Electoral College, Near Absolute Free Speech) but which in aggregate has functioned admirably to forestall the totalitarian threat represented by vested interests, intolerant majorities, and the State itself.

There are a couple of recent books out with tangential themes linking war and violence with the development of democracy and war and its relationship with inequality (The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century by Walter Scheide, Global Inequality: A New Approach for the Age of Globalization by Branko Milanovic, Forged Through Fire: War, Peace, and the Democratic Bargain by John Ferejohn and Frances McCall Rosenbluth, etc.) which illustrate just how complex is the interplay between guns, governance and democracy.

My teenaged callow skepticism of the Second Amendment has given way to at least a recognition that things are far more complex than we are usually willing to acknowledge and that the Second Amendment quite possibly plays a far more consequential and strategic role than the bien-pensant acknowledge.

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