Wednesday, August 10, 2016

Trump is Clueless About the Second Amendment and Constitutional Law

   Another day, another outrage.  Yesterday Donald Trump made some remarks that sounded a lot like previous right wing calls for "Second Amendment solutions," that is, suggestions that conservatives should resort to political violence against their enemies.  This rhetoric is, in fact, common enough among today's right wing that it is difficult to credit Trump's defenders' claims that the candidate meant something else or was "just kidding," as if he hadn't been thinking of this popular extremist trope in the first place (and of the fact that his audience would love it).  In fact the only line of defense with even a pretense of credibility is that Trump has to keep saying outrageous things because that's what's got him where he is and if he stopped the whole thing would run out of gas.  That might very well be true.

   But the "Second Amendment solution" gaffe isn't the only thing about Trump's stand on gun rights/gun control that ought to give us pause about the Republican candidate's competence for the office of the Presidency.  The Republican nominee appears to have not even a high school civics class understanding of 1) the centuries-old debate about interpreting the 2A or 2) the larger context of the relationship between the Constitution (including the 2A) and the Judiciary (broadly understood as "constitutional law").  Let's take a look at these two respective topics, and Mr. Trump's less than amateurish take on them (I'm an amateur in this department; Trump is, to use a put-down made famous by the physicist Wolfgang Pauli, not even wrong).

   1) Second Amendment interpretation.  The 2A states, in its entirety, "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."  A sentence consisting of two simple clauses, but two clauses that are not necessarily consistent in their meaning or implications, the 2A has been the subject of literally thousands of judicial interpretations, as it is the institutional touchstone of decisions determining the constitutionality, or lack thereof, of all local, state, and federal laws, legal rulings and legislation regarding the purchase, possession and use of firearms.

   It's easy to see why the original intention of the 2A is vexingly opaque.  If it just said "The right of the people to keep and bear arms shall not be infringed" that would be relatively straightforward, although still problematic as to the scope of "arms."  Not all conservatives would be inclined to accept that this includes the right of private citizens to maintain their own private nuclear bombs, after all, or fleets of combat helicopters, although some would (and do).

   But the 2A isn't just that phrase.  That phrase is preceded by a phrase that is clearly meant to function as the framers' argument for prohibiting the infringement of the right of the people to keep and bear arms, namely that  "a well regulated militia (is) necessary to the security of a free state."  That is, in the absence of a "well regulated militia" there is no justification (offered in the Constitution, that is) for any right of private citizens to keep and bear arms at all.  At least, so a politically liberal interpreter like me would read the amendment.  And while both sensible conservatives and liberals alike are naturally going to gravitate towards common sense positions like "sports rifles yes, artillery no," no such pragmatic consensus currently exists.  Instead there is a fierce debate that rages in the face of a serious national problem with gun violence.

   But the present topic is not this all-too-familiar one about the 2A and gun rights/gun control.  My topic today is Mr. Trump's grasp of all, or any, of this.  Trump appears to believe that the 2A is universally accepted as establishing the right of private citizens to possess firearms: he appears to be unaware of the whole venerable debate.  In his latest book Crippled America: How to Make America Great Again (November 2015) Trump gives us his "positions" on a number of major policy issues. On gun control he simply quotes the 2A in full and adds one word: "Period."  He maintains that Clinton wants to "overturn the Second Amendment" which goal is not and never has been any part of her (or the Democratic Party's) platform.  What liberal Democrats like Clinton and I contend is that gun control measures are not, as such, unconstitutional under the 2A.  Which brings me to:

2) Trump is shockingly clueless about constitutional law.  This is actually worse, I think, than Trump's mistaken belief that the 2A definitively establishes the right of private citizens to possess firearms because in this case his ignorance extends to our entire system of governance. "Hillary wants to abolish -- essentially abolish the Second Amendment," Trump told the rally on Tuesday, adding, "By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks."  He appears to believe that judges can rule on the constitutionality of the...Constitution.  Well, no.  Under our system of government the legislative branch can enact laws, and the legislature and the state legislatures acting in tandem can amend the Constitution.  The function of the judiciary (as regards the Constitution) is to rule on the constitutionality of laws and legal decisions through Constitutional interpretation.  The Constitution itself is the Hobbesian formal "sovereign" under which these rulings occur: it is not itself subject to judicial authority.  That relationship goes the other way around.  And although that basic fact may not be crystal clear to every blessed soul it certainly is to every constitutional scholar, judge, lawyer, legislator and 10th grade social studies student in this country.  Trump, not so much.