Wednesday, November 23, 2011

Roger B. Taney, the NRA, and Hillary (Not That Hillary)

Roger B. Taney, the NRA, and Hillary  (Not That Hillary)

There’s a first time for everything.  First steps, first words, first day of school.  This is a story that starts with my first experience with the NRA.

Summer camp, 1969.  The traditional spectrum of activities: baseball, basketball, soccer, and swimming.  Less interesting rainy day things like lanyards and clay.  And riflery.  That was pretty cool for suburban kid.  All that wonderful solemnity of going to the cabinet to get the guns (fairly harmless bolt-action .22 caliber rifles), making sure the chambers were clear, marching them across the camp to the riflery range, right hand on the stock, forestock in your left, pointed down and away from you. And Hillary, the riflery instructor.  She was petite, had shoulder-length light brown hair, hazel eyes, fantastic freckles. And she was a dead shot.  I was smitten.  And in my completely clueless proto-teen mind, I held to the idea that if I could just shoot well enough (a few five bulls-eyes targets would do it), I might win myself an NRA sharpshooter patch (it, too, was very cool, crossed rifles against a white background), and her enduring admiration.

In the fog of middle age, I can’t even remember Hillary’s last name, but I can remember how I felt about guns.  It was fairly uncomplicated, without Constitutional references.  They were regular, normal parts of life, and should be licensed and legal for regular and normal people.  My parents didn’t want them in the house, but my father, and most of my friend’s fathers had served in WWII or Korea, gone through basic training and had used them.  Some of our neighbors hunted, and I would imagine many of them owned guns. The 1969 version of the NRA seemed like the Boy Scouts or the Rotary. 

Whatever powerful (and delusional) drive I might have had to get that NRA patch, I have to admit I fell short.  I ascribe it purely to my nearsightedness.  Besides, Hillary was way too old for me.  But, perhaps it served to send me back to reading history, and, in a round about way, to the NRA in 2011.

But first, a stop in 1857.  The Supreme Court, ruling in the Dred Scott case, declared (for only the second time in our nation’s history) that an Act of Congress, the Compromise of 1820, was unconstitutional, and that Congress had no power to prohibit slavery in the territories.

The decision was written by Chief Justice Roger B. Taney, and, it was, by design, the strongest possible statement of Southern and slaveholding interests.  First, Taney ruled that African Americans could, by virtue of their birth, never be citizens of the United States, whether they were free or slave.  At the time the Constitution was adopted, he wrote, blacks had been "regarded as beings of an inferior order" with "no rights which the white man was bound to respect." Then, he went on to declare that, even though individual states opposed slavery, even though Dred Scott’s owner had travelled with him to free states, and to free territories, that did not change Dred Scott’s status.  Congress had no right to exclude slavery from the federal territories. It was irrelevant whether a community had slaves or was even sympathetic; it was irrelevant whether there were laws prohibiting slave ownership, slaves were property, and a property owner could take his property wherever he wanted, and use it as he saw fit.  To do otherwise was a violation of the Fifth Amendment prohibition against the seizure of property without due process. An entire, multigenerational history of hard-won compromise between slave and free states was wiped out with the stroke of a pen.  In his self-absorption, Taney erroneously thought his would be the final word; in fact, he probably had as much to do as any other person in igniting the Civil War. Roger B. Taney, the ultimate activist judge.

Earlier this month, the House adopted HR 822, the  “National Right-to-Carry Reciprocity Act of 2011”.  Under the act, a gun owner who obtained a valid license to carry a concealed weapon in his or her home state could carry in other states, as long as those states allow concealed weapons and don't have specific rules about concealed weapons carried by nonresidents. What’s particularly intriguing about HR 822 is that state and local ordinances restricting the places in which one may carry a concealed weapon, or who may obtain a license, may not be enforceable against a visitor from a state that has less restrictive licensing rules.  What we have is a race to the bottom, with the state with most expansive view of gun rights essentially setting the law of the land. 

Further, the NRA has successfully supported the “restoration” movement, a nationwide push to allow violent felons to regain their gun rights after they are released from prison.   A number of states have now adopted this rule (occasionally, as was reported in The Times on November 13, with catastrophic results).

We ought to think carefully about that.  49 states (all but Illinois) allow concealed carry, under defined circumstances, but those circumstances can vary greatly from state to state. Even though the individual legislatures of those states have carefully decided who may get a gun, applying criteria that are reflective of local mores and values, those local qualification rules will be inapplicable to out of state visitors. Perhaps the citizens of many of those states don’t mind-perhaps they are very gun friendly.  In fact, about 35 states already have some form of reciprocity on gun permits.   But there are also ten "may issue" states, where the licensing authorities have some discretion in the issuance of permits. HR 822 blows up this regulatory framework.  The NRA calls it nothing more than a national driver’s license for guns.  It’s quite a bit more than that.  HR 822 allows a twice-convicted felon with a history of mental problems to regain his permit in Minnesota (a “shall issue” and “restoration” state), stride through the streets of New York City while packing heat, and take the elevator to the top of the Empire State Building.

What about the 10th Amendment?  It, and nullification are the favorites of politicians of a certain stripe whenever they disagree with a Federal law.  To Rick Perry, the 10th Amendment is the 11th Commandment.  What about the rights of the people of the State of New York to regulate (not prohibit, but regulate) gun ownership to further public safety?  Not so important.  If Texas says one of their citizens can have a gun, New York must bow to the Lone Star State, and Federal Law will enforce that. 

Roger Taney would have approved.  For him, certain types of constitutional rights (slave-ownership) superseded all other rights.  For the NRA, it seems unrestricted gun ownership and usage, by literally anyone, holds the same position of esteem.  Not the NRA of my youth.

As for me, I still feel the same way about guns and the Second Amendment; that gun ownership is a right to be freely exercised by rational, law abiding citizens, subject, just like any other right, to certain reasonable and limited restrictions.  I guess that’s so 1969.

I wonder what Hillary thinks about HR 822.  I don’t know where she is these days, or whether she can still pick something off at 100 yards, but something tells me, she wouldn’t have gone for it either.  At least I hope not.