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Second Amendment Follies
America’s almost-anything-goes gun laws are insane. This is well known, not just throughout the civilized world, but within the United States as well. The polls leave no doubt that, even in our gun-besotted culture, a majority of Americans agree; indeed, a huge majority agree, depending on what questions are asked and how they are formulated.
Why, then, don’t our democratic institutions do something about it? It is not as if no one can imagine how to improve upon the status quo. Anyone this side of the National Rifle Association (NRA) can.
The short answer used to be that the institutions that are supposed to represent the will of the people are the problem, that what is holding sanity back is government, all three branches of it.
This may be changing; the executive branch may be backing off — because, after Sandy Hook, our drone-wielding President, no slacker when it comes to killing children, considers the issue opportune. Will he, for once, persevere? Many liberal pundits think so. We will find out soon enough.
But even if he does, the legislative and judicial branches will still be in sanity’s way. Money, the root of much (political) evil, is one reason why. The NRA, representing the interests not so much of gun owners as of the military/national security/armaments industry complex, owns the legislative branch.
But that is not the whole problem. As George W. Bush would say, we must not “misunderestimate” the roles played by atavistic modes of thinking or the consequences of sheer muddle-headedness. The judicial branch is the main culprit there.
And we should realize too that government is not the only problem; indeed, government would not be a problem at all if muddle-headed ways of thinking were not pervasive throughout the larger political culture.
The philosopher David Hume (1711-1776) declared “opinion” the true foundation of the state. Our gun laws reveal just how muddled the foundation of the American state can sometimes be.
Because opinion’s effects are more evident in the legislative than the judicial branch, this is where the story begins.
* * *
Congress is dysfunctional: the House because the Republican majority follows Nancy Reagan’s precept “just say No”; the Senate because the Republican minority has de facto veto power over everything they can filibuster and therefore over almost everything that body does. It doesn’t help either that the Democrats are useless or that the President would rather acquiesce than fight.
In view of how similar Democrats and Republicans are ideologically, it might seem remarkable that they don’t get along. But, on further reflection, their mutual hostility makes sense; competition for the hearts, minds and wallets of banksters and corporate moguls makes extreme polarization almost inevitable.
At an ideological level, this gets expressed through the phenomenon Freud called “the narcissism of small differences.” Those differences have more to do with Kulturkampf than with the kinds of struggles over policies and objectives that ordinarily take place in times and places where democracy involves more than periodic electoral contests between semi-established, like-minded political parties.
For democracies to flourish, good will is essential, especially in legislative bodies.
With good will missing on Capitol Hill, it is no wonder that the only thing Congress does well is block obvious solutions to pressing problems.
This is not unequivocally a bad thing in view of whose interests both parties serve. On the other hand, since decisions must be made – indeed, since deciding nothing sometimes is a decision – and since obstreperousness and obstructionism win out over reasonableness nine times out of ten, Congressional impasses tend to result in the most obdurate party, the Republicans, the more retrograde and vile of the two, prevailing, even when elections don’t go their way.
However a dysfunctional legislative body is not the only or even the most debilitating problem in the way of making gun laws less insane. The debate over so-called Second Amendment rights is shaped by an historical legacy that is at least as disabling.
* * *
Although the United States did not become a global power until the dawn of the last century, it became an empire, a continental one at first and then a hemispheric one, almost from the day of its inception. But for all its imperial might, it has never quite outgrown a humble inheritance from its colonial past.
Elements of Low Church seventeenth and eighteenth century Anglo-Protestant religiosity survive here, and not just in benighted “faith communities.” Our politics is driven by this legacy – driven to silliness.
Centuries ago, most Protestants in England and elsewhere held that the Bible, read literally, is dispositive in all matters. Dissenting believers were even more extreme than the official authorities, and their understandings of Biblical doctrine were even more literal.
Many of the first settlers in what is now the United States were refugees from religious persecution, and dissenters were prominent among them. As time wore on, colonial populations became more diverse and less religious; deism, which upholds the idea of an omnipotent and omniscient Creator but denies that He (always a “he”!) has any involvement in human affairs, and even atheism, which denies God’s existence altogether, flourished.
But the idea that, even in secular matters, a sacred text is the ultimate authority took hold and thrived.
That text is our Constitution. It was written by human beings, not revealed by God. Nevertheless, there are people who think of it the way the first English settlers thought of Holy Writ.
There is nothing inherent in written constitutions or bills of rights that necessitates this reworking of a mode of thought that mainstream Protestant denominations long ago abandoned.
Quite the contrary, the thinking behind our Constitution and the written constitutions and charters of rights that were later adopted elsewhere derives from Enlightenment sources that accord authority to reason and evidence, not revelation.
And, after some two and a quarter centuries or unrelenting scrutiny, the consensus is that the sort of “constitutionalism” our founders had in mind is sound and, in the circumstances they confronted, wise.
The guiding idea they implemented was that laws and practices should conform to a “basic law” or charter everyone, or at least everyone committed to keeping the political community going, can endorse; and that an important function of a basic law is to defend individuals’ liberties by imposing limits on what states can rightfully do.
This idea only becomes silly when it is construed as a secular version of the theological doctrine of Biblical inerrancy, according to which the Bible, read literally, is dispositive and always right.
For the most part, throughout our history, the Constitution has not been construed that way. However there are now right-wing Justices on the Supreme Court, and other influential judges and academic authorities, who come perilously close to endorsing something like a doctrine of Constitutional inerrancy.
It could be worse; it could be the Bible itself that they would make the law of the land.
All the Abrahamic religions are grounded in sacred texts, and they are all susceptible to theocratic temptations that can erupt when conditions are right. Christianity is as scriptural as any of the others. Fortunately, however, it has more genetic immunity to theocratic eruptions than the others do.
This is because its founding premise is that, with Christ’s death and resurrection, the Law represented in the “Old Testament” texts it regards as sacred is superseded — not in its entirety (the Ten Commandments are still in force) but in its applications to ritual practices and the regulation of daily life.
The other Abrahamic faiths, Judaism and Islam, are massively, indeed compulsively, concerned with regulating individuals’ lives and behaviors and organizing communal life through laws. Early Christianity had a different focus. It was less concerned with observance than with beliefs.
Of course, even before it became the official religion of imperial Rome, Christianity had to impose its own rituals and practices. Even so, throughout the millennia that followed, right belief continued to take precedence over right practice, and the antinomian core at the heart of Christian religiosity remained alive.
And thanks to early Christianity’s precarious positions within the Roman Empire – first as a persecuted Jewish sect, then as a significant religious tendency, and finally as an official, but contested, doctrine — Christian thinkers have always been disposed to distinguish sacred from temporal authority, “rendering unto Caesar, the things that are Caesar’s, and unto God the things that are God’s.”
The idea that ecclesiastical authorities should govern or that political communities should be run on the basis of what those authorities declare doctrinally correct has therefore never quite taken hold.
What has taken hold instead is the idea that the way to think about what to do is to let scripture – or, in modern times, scripture’s secular equivalent — be the ultimate guide.
Needless to say, the Constitution, even more than the Bible, is vague or ambiguous or both. It is therefore seldom possible to fix on, or even to identify, its literal meaning.
Sacred texts, or secular documents construed as sacred texts, must therefore be interpreted. And whenever interpretations are contested, as they are bound to be, there is no scriptural way to determine who is right or wrong. With true scripture, neither can there be a rational determination, inasmuch as the very idea of discovering truths in revealed texts is at odds with rational criteria for belief acceptance.
This is why all scriptural traditions have distinctive, extra-rational ways of validating scriptural readings. These can range from appeals to individual conscience, to settled methods of disputation by learned authorities, or to the pronouncements of ecclesiastical institutions. Vastly different “readings” therefore abound. What they have in common is just a commitment to the authority of the texts themselves.
This idea has prevailed for so long that it is often taken for granted. But it is extremely odd in both its theological and secular versions. Why would an omnipotent, omniscient and perfectly good Being be kind enough, as it were, to tell His creation what they need to know – but also unkind enough to express Himself in a form that remains divisively opaque? Surely God could have spoken more clearly. One would especially suppose that a Being who purportedly cares for all souls equally would be loathe to provide conditions that empower elites to interpret His will and, in so doing, to dominate the rest. But that is precisely what believers think God did.
It is also odd that a Supreme Being’s revelations would come in clusters rather than continuous transmissions. Beliefs, practices and institutions change with circumstances; to survive, they must evolve. Why, then, suppose that they are grounded in foundational revelations that came all at once long ago?
For Judaism, the foundational revelation, the Torah, was given to Moses at Mount Sinai. It mainly concerns the administration of a temple cult. For the past two millennia, with the temple destroyed and never to be rebuilt (except perhaps in the fantasies of ultra-Orthodox believers and Christian Zionists), what God told Moses has therefore been rendered at least partly irrelevant. Nevertheless, rabbinical (post-Exilic) Judaism has always represented its own theory and practice as an implementation of Torah precepts.
As noted, for Christians, the Torah and the rest of the Old Testament are partly superseded and partly supplemented by a second revelation that came after Christ redeemed humankind. Muslims believe that lightening struck a third time when Allah dictated the Koran to Mohammed. Thus all the Abrahamic faiths are committed to a Big Bang theory of ultimate Truth (with one, two or three bangs); according to which God told the human race – or, rather, the part of it He favors – everything it needs to know all at once.
Why a loving God would remain hidden thereafter, why He would not help humanity find its way by correcting its course, is unclear. To say everything all at once and in an obscure manner is indeed to work in mysterious ways!
But God left it to His faithful to determine what He had in mind. This is why even the most ardent believers in Biblical inerrancy understand, at some level, that scripture must be interpreted. Taking the Bible at its word, and construing its words literally, is more like a goal to aspire towards than a workable strategy for determining what to do.
Nevertheless it was this idea that England exported to its North American colonies along with the religious dissidents it sent as colonists. And once implanted onto American soil, that idea took on a life of its own outside the religious traditions within which it arose.
Scripturalist ways of thinking survived secularization in much the way that the Protestant ethic described by Max Weber survived the waning of faith in historically Protestant regions of Europe and North America.
Thus it is that in America’s civil religion the U.S. Constitution assumes a role similar to the one English Puritans accorded to the Old and New Testaments. The irony is great inasmuch as the Constitution resonates with the enlightened aspirations of America’s revolutionary founders, and because it is particularly insistent on the separation of Church and State.
Another, bigger irony is that the part of the Constitution that is most susceptible to scripturalist understandings, the Bill of Rights, is formulated in a way that draws on a very un-Biblical source, Roman law.
* * *
“Rights” specify the rules of the game. Chess players have rights to move their pieces one way or another according to the rules of chess. Roman law accorded rights of just this sort, the Roman legal system providing the rulebook.
By the seventeenth century in England, the concept began to be used to articulate extra-legal political demands. The concept is so useful for this purpose that it has become a fixture of political discourse everywhere. And so, nowadays, appeals to rights often have more to do with what the rules of the game ought to be than with what they actually are.
Because it is a legal document, the Bill of Rights tends to turn policy questions into legal decisions, making courts the ultimate arbiter of what laws will be. This is why, in the United States, questions that legislatures would normally decide tend to be construed as constitutional questions that are decided in the courts. In less litigious political cultures, the extra-legal dimension of many rights claims would be more transparent.
Rights claims are addressed to others, commanding them to perform or not perform certain actions according to legal or extra-legal rules. Rights therefore impose what legal theorists call “correlative obligations.” For example, if there is a right to free speech, then others (especially the state) have a negative obligation — not to interfere with speech. If a right to health care is claimed, the idea is that others (presumably, the state again) have a positive obligation to provide it.
That people, not all of whom are ignorant or stupid, think that vague rights claims agreed to more than two centuries ago have the status Puritans accorded the Old and New Testaments is mind-boggling enough. But that they then get Second Amendment silliness out of the text of the Second Amendment defies the imagination.
The text reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In Constitutional jurisprudence, tortuous, often disingenuous, reasoning — in conjunction with appeals to precedents of varying degrees of relevance — give rise to interpretive traditions that, when serviceable, are deployed for getting desired results. Over the past several decades, on Second Amendment questions, right wing jurists have led the way. Recent Supreme Court rulings are particularly culpable.
In 2008, the Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to possess firearms, irrespective of service in a militia. Then in McDonald v. Chicago (2010), the Court ruled that state and local governments are subject to the same limits as the federal government.
To get these decisions out of the Second Amendment’s words requires enormous ingenuity. Too bad that it was not put to better use.
Second Amendment fundamentalists would actually do some good if they focused their muddled convictions upon, say, the Fourth Amendment, which prohibits unreasonable searches and seizures, or the Sixth Amendment, which guarantees a right to a speedy and fair trial, or the Fifth and Fourteenth Amendments, which guarantee longstanding due process rights.
But persons in the thrall of Second Amendment silliness have no time for consistency.
And since the NRA in recent years has taken a hard right turn, in accord with the interests of the military/national security/armaments industry complex, most of the people who fall for the muddles it promotes and who endorse its line could care less about the consequences of the Bush-Obama war on terror for traditional rights and liberties.
Their only concern is to block meaningful regulation of gun ownership. The hypocrisy inherent in this stance is palpable.
* * *
Constitutional rights are, by their nature, “indefeasible”; they cannot be traded off for other reasons – not even to make outcomes better. They trump other considerations.
How much of a constraint is this on getting the best possible outcomes, on making outcomes better?
Historically, it has not been much of a constraint. In normal Constitutional jurisprudence, indefeasible rights can be construed in any of a variety of ways. What the Constitution says, what its words mean, is fixed less by the words themselves than by the history of their interpretation. How could it be otherwise when the words have so little bearing on the issues in contention?
To cite just one especially egregious example: the Constitution plainly states that Congress alone is empowered to declare war. Nevertheless, since World War II, the United States has waged countless wars without any explicit Congressional declaration. They have done so legally too, insofar as the courts are the final authority.
Of course, those courts require that arguments be made, and wildly implausible arguments are likely to fail. But in this case as in so many others, all it takes to get the desired legal ruling and therefore the desired result, is a tad of that creative “reasoning” for which lawyers are infamous.
Were anyone seriously to try to implement a notion of Constitutional inerrancy that genuinely takes the Constitution at its word, why not hold the executive branch to its obligation to obtain declarations of war before launching those escapades of murder and mayhem to which Commanders-in-Chief become addicted?
How much better that would be than the silliness that clusters around both popular and judicial understandings of the Second Amendment!
It would be more salutary from a public policy perspective, and vastly more honest. It would also be less of a piece with the atavistic frame of mind that America retains from its colonial past, and with the faith tradition that helped shape that frame of mind. This would be all to the good.
This is not just a theoretical point. In view of all the harm our gun laws do, would it not be vastly better to cast Second Amendment silliness aside, and decide what to do about guns on the basis of evidence, reasoned historical and conceptual arguments, and plain common sense?
Because they were not fools, this is certainly what the authors of our Constitution would have wanted.
And if, to maintain continuity with past practices or for any other reason, anybody in any branch of government demands that the requisite policy debate be cast in a constitutionalist idiom, Washington is full of people clever enough to take that burden on.
ANDREW LEVINE is a Senior Scholar at the Institute for Policy Studies, the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).