I find myself kind of obsessed with David Mamet’s bizarre diatribe on gun control, published in Newsweek and on Newsweek’s site, The Daily Beast. I wrote about it yesterday, but I just can’t quit it. It’s like a bad lip reading version of constitutional history: comically wrong at every turn, yet compelling precisely because it’s so wrong.
It’s a bottomless pit of wrong. It’s a veritable loaves-and-fishes of wrong. It’s the gift that keeps giving.
So I keep going back to it to find humorously inaccurate things I missed before.
One thing that jumped out at me today was this: Mamet, like so many people who obsess over firearms, telescopes the early phase of American history in an effort to weave the Founder’s justification for armed rebellion into the text of the Constitution itself. “The Constitution’s drafters,” Mamet says, “did not require a wag to teach them that power corrupts: they had experienced it in the person of King George.” He then goes from quoting the Declaration of Independence –
The American secession was announced by reference to his abuses of power: “He has obstructed the administration of Justice … he has made Judges dependant on his will alone … He has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our Laws … He has erected a multitude of new offices, and sent hither swarms of officers to harass out people and to eat out their substance … imposed taxes upon us without our consent… [He has] fundamentally altered the forms of our government.”
To discussing the Constitution itself –
It was to guard us against this inevitable decay of government that the Constitution was written. Its purpose was and is not to enthrone a Government superior to an imperfect and confused electorate, but to protect us from such a government.
As if they were essentially one and the same.
Of course, anyone who passed an eighth grade civics class knows that the Declaration of Independence isn’t part of the Constitution. Indeed, the Declaration and the Constitution weren’t even written very close together in time. The Declaration was written in 1776; the federal Constitutional Convention wasn’t convened until 1787, and the Constitution itself wasn’t ratified until 1789. Congress then adopted the Amendments which became known as the Bill of Rights (including the Second Amendment) in 1789, and those Amendments became in effective in 1791 after ratification by the States.
Moreover, although we know who signed the Declaration of Independence – because, of course, they signed it – we do not know precisely who attended the Constitutional Convention. We do know that there were forty men who signed the final draft of the Constitution on September 17, 1787, as compared to fifty-six who signed the Declaration eleven years earlier. Only six men signed both: James Wilson (PA), George Read (DE), Roger Sherman (CT), Benjamin Franklin (PA), Robert Morris (PA), and George Clymer (PA).
More importantly, to whatever extent the Venn diagram of the men we call the Founders, on the one hand, and the drafters of our Constitution, on the other, might have overlapped, what matters, for purposes of constitutional law, is the Constitution. Even if the members of the Second Continental Congress in 1776 were identical – to a man – to the delegates at the Constitutional Convention in 1787, we’re bound by the Constitution they drafted, not what they said eleven years prior.
And so the question isn’t whether the signatories to the Declaration of Independence thought that an armed populace would keep the government honest, as Mamet seems to suggest when he writes, “They realized that King George was not an individual case, but the inevitable outcome of unfettered power; that any person or group with the power to tax, to form laws, and to enforce them by arms will default to dictatorship, absent the constant unflagging scrutiny of the governed, and their severe untempered insistence upon compliance with law.”
The real question is, how did they feel about it by the time they drafted the Constitution? Unsurprisingly, the Constitution actually provides the answer, right in Article I, Section 8:
The Congress shall have Power …
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions …
So it would appear that the drafters of our Constitution were none to keen on the notion that armed insurrection was a good way to keep government honest. Then again, it was Declaration-of-Independence-signing John Adams who, as President in 1798, signed into law the Alien and Sedition Acts, which, as the Library of Congress explains, “increased the residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered ‘dangerous to the peace and safety of the United States’ and restricted speech critical of the government.” (Emphasis supplied.)
My point is not to diminish the Declaration of Independence as perhaps the greatest political manifesto of all time. My point is that the extent to which the government can regulate firearms is a constitutional question. And the Constitution, as the Supreme Court has acknowledged, does, indeed, permit some regulation of firearms and the ownership of firearms. Romanticizing the issue the way Mamet and so many others do today – imagining themselves to be 21st century Minute Men; the guardians of liberty against some imaginary totalitarian threat – serves only to obscure the really important discussion we need to have about the precise contours of the Second Amendment, as defined by the Supreme Court, and about what the government should or shouldn’t be doing within the scope of what’s constitutionally permissible.