Hello and welcome back to the Civic Flame, the podcast where we take a deep dive into the US Constitution and consider how it is, and is not working, in the US government today. This week weÕre getting into the Bill of Rights or the First Ten Amendments to the US Constitution. 00:01:00 The Bill of Rights says the government should stay out of our business The Bill of Rights is fun because you see all the places the Founder specifically wanted to keep the government out of. If you know even a little about US colonial history, you understand where a lot of these things came from, and it helps to place this in its historical context to understand where things come from and what theyÕre meant to mean. Today we tackle one of the least contentious Amendments: the 3rd Amendment and one of the most contentious, the 2nd Amendment. LetÕs go! (transition) 00:02:00 The Firearms Industry and politicians use fear to distort the narrative So, the Second Amendment to the US Constitution can be hard to talk about. It seems to me, at least, like the second you start talking about it peopleÕs rationality runs right out the window. I think this is because we donÕt do a lot about educating people on law and the US Constitution. Plus, the firearms industry spends a lot of money funding campaigns promising the Òliberals are going to take your guns.Ó Why? Because when they do gun sales go up. Am I suggesting the everything about political discourse over the last 40 years has been one giant psy-op? Not in this podcast, but circle back to me on that if I ever decide to do one on the Epstein files. So, what does the Second Amendment say, and why is it confusing? 00:03:00 What the Second Amendment actually says The Second Amendment says: 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. 00:03:08 The Second Amendment writers got a little crazy with the commas ThatÕs ALL it says. Remember last time when we talked about the doctrine of selective incorporation? Quick refresher: originally the Bill of Rights only applied to the federal government. After the 14th Amendment, sections of the Bill of Rights were applicable to the statesÑnamely political rights like free speech, personal liberties like free exercise of religion, and due process in the 4th through 8th Amendments. But what about the Second Amendment? 00:03:39 Selective Incorporation and the history of gun regulations, especially for Black men Before the 14th Amendment states regulated the right to bear arms A LOT. Particularly among free Black men. After the 14th Amendment, when slavery had legally ended, states still enacted laws that said Back men couldnÕt have firearms either at all or without the permission of White people. So, we know that states have and can restrict access to gun ownership. How much does the 14th Amendment change that and open up gun rights at the state level? ItÕs unclear. 00:05:22 DC v Heller brings up some questions and changes with the 14th Amendment and incorporation What makes this less clear is the 2008 case DC v Haller when Justice Scalia, a longtime court activist when it came to gun rights, wrote the majority opinion saying that banning of certain firearms in Washington, DC was not permissible under the 2nd Amendment. Now, DC is not a state, so the 14th Amendment applies weirdly here, but the 2nd Amendment was never in question (remember, itÕs for sure a federal thing). But what Scalia did was lay out the framework saying that the Òoperative clauseÓ was the right to bear armsÓ NOT the Òwell-regulated militia.Ó 00:06:00 Originalism and the Òthe constitution made me do itÓ doctrine This is interesting because Justice Scalia claimed to be one of the major founders or and believers in the idea of Òoriginalism.Ó This is a political legal movement that says it believes in interpreting the Constitution as the founders originally intended. Of course, this often means however the judges want to decide and as Laurence Tribe (noted constitutional scholar) says Òthe constitution made me do itÓ defense. But the reality is that during the founding times of the US and in other documents of the time, Militia meant National Guard. Duke Center for Firearms law writes an article called ÒWhy Heller is bad HistoryÓ which really gets into this. 00:08:00 Operative Clauses, the gun lobby, and questions of interpretation and the purpose of militia But this Òoperative clauseÓ ideology was used by the gun lobby, through ScaliaÕs reasoning to say, the 2nd Amendment protected an individual right to carry firearms which was a broader reading that we had had before and people around the country started trying to sue states for clarification. ItÕs worth noting that I live in Massachusetts. While I have not applied for a license to carry here, I actually think our laws strike the sweet spot. I have gone shooting with my grandfather because I just really enjoy firing a bolt action rifle. I also went to high school in Texas, so I know a lot of gun owners. 00:08: 48 Guns as a mental health issues, for-profit mass radicalization, and the benefit to the gun lobby I lean towards the Ògun violence is a mental health problem,Ó myself. But I also know that the gun industry is doing its best to promote ill mental health to sell guns and that has consequences. IÕm far more willing to ban the gun industry than guns themselves. But, it is difficult living in the US and looking at the state of gun violence here, especially as someone who grew up during a time of the assault weapons ban and has children in public schools, to not see that we have a problem. No offense to men out there, but too many of you are irresponsible gun owners. Whether it is because you donÕt help police your boys who are clearly exhibiting violent tendencies or because youÕre leaving your guns unsecured as a political statement. Quit it. 00:10:35 A Majority of Americans favor gun safety laws but we need to remember regional culture A majority of Americans favor some kind of gun safety laws. But what those are tends to break down by where you live. Where I came from in very rural Texas, guns are just a part of life. Mostly because wild hogs are bastards and will try to kill you and your dog. And we need to start talking about regional gun safety laws not national ones because this is one of those issues where region often determines culture a lot more than nation. 00:11:41 We have good gun safety laws on the books, but theyÕre not always enforced But the other major issue is that we have a lot of good gun laws on the books. Laws like red flag laws that give police the right to check up on gun owners who are giving mass shooter vibes, laws that restrict firearm access from those who are convicted of stalking, rape, or domestic violence, and background checks. The problem is a) these are not national. They are state by state and a lot of laws donÕt have them. Which is especially problematic because most mass shooters have a history of domestic violence and/or misogynist violence. The second issue is that even when we have those laws on the books, there are groups that flat out refuse to support them. The Constitutional Sheriffs movement for instance. So, the Constitutional Sheriffs are the legal arm of the Sovereign Citizens group. If you check out the Southern Poverty Law CenterÕs Hate Groups and Extremists web page, you can learn a lot more about them. But the Constitutional Sheriff believe that the Constitution says the sheriff is the key law enforcement officer in the country (convenient for them). And they refuse to enforce federal laws (like background checks) or even state laws that they disagree with. 00:13:15 Extremism, Misogynistic Violence, and public health complicate gun laws As any other extremist organization, they tend to be really misogynist. So, they donÕt take domestic violence seriously, meaning that men who are violent towards women get to keep their firearms. Systems were designed by men to protect men. Now, there are a whole lot of public health issues here (the number one killer of pregnant women is men) and other issues, but the legal issue is the focus of this podcast and the legal issue here is that because the Second Amendment is unclear, it is unclear what laws we should have, even as it is unclear which laws are enforced. 00:15:05 The Second Amendment is not a second-class right The National Constitution Center has an article called ÒNot a Second-Class RightÓ that discusses the more expansive view of gun rights, and Justice John Paul Stevens wrote a book called Six Amendments: How and Why We Should Change the Constitution, and one of the Amendments he calls for changing is the Second. 00:16:00 Guns wonÕt protect you from the government ask Philando Castile and Alex Pretti So, there are lots of arguments that abound. And while itÕs unclear which arguments are the most compelling or most Constitution, itÕs clear which ones arenÕt. The most common one you hear from gun owners is that gun owners are necessary to stand up to a tyrannical government, and this is the most laughable and pompous one. If the federal government wants to kill you, whatever youÕre packing isnÕt going to stop them. When you say youÕre going to protect from the government, do you mean youÕre going to shoot postal workers? What you police? As gun owners have been shot by the police (like Philando Castille) or by ICE (like Alex Pretti), where are the 2A folks who are complaining? TheyÕre not. Because the Òstand up to the governmentÓ is an aesthetic not an actual belief. People just use that because they like to shoot guns. And hereÕs the thing: you donÕt need a reason to like to shoot firearms. You have a Constitutional right to do so. So, just go shoot at some skeet or some cans or Bambi. But spare us all your posturing. 00:17:43 The Third Amendment: the non-problematic fave of Amendments (where I say ÒquarantineÓ but should say ÒquarterÓ sorry! #CovidShellshock) Now that thatÕs out of the way, letÕs talk about the Third Amendment. The Third Amendment says: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. This comes because the British used to quarter (or let live) in Colonists homes, especially those they thought might be anti-British. This is one of those Amendments along with the 4thÑthat weÕll talk about next weekÑthat centers privacy in oneÕs home. And thatÕs basically the most interesting this about it. This is one Amendment that has never been litigated before the Supreme Court. TheyÕve never had to rule on it. So, thatÕs your controversial and non-controversial. (transition) 00:19:01 Coming Soon: Due Process and Privacy! As we get into next week, weÕre going to be getting into Due Process. WeÕve abandoned out SubStack and recreated it specifically for the Birthzillas podcast. So, if you like this podcast and you want to hear how youÑyes you personallyÑcan help stop the maternal mortality crisis in this country, then check out Birthzillas on Substack and Instagram and check out our podcast. For the civic flame, follow Dr Fun Sponge on Instagram and Blue Sky. Keep warm, and IÕll see you out there! (outro) The Civic Flame is a Dr Fun Sponge product with writer Amber Vayo and sound producer Matt Munyon.