Close Encounters With Second Amendment Nuts

It occurred to me that if Second Amendment zealots applied their constitutional logic to the First Amendment, they would be demanding that folks be allowed to yell, “Fire!” in a crowded theater, no matter how many people would get hurt in the stampede.

By God!” the zealots would say, “If we can’t yell what we want when we want, what’s next? Joe Biden telling us we can’t call turkeys in the fall?

By now most of you have heard about the Tennessee man (who happens to be a CEO of a company that trains people “to prevail in a violent confrontation“) who said he would fire the first shot in a civil war over unfettered gun rights. Here is his contribution to American civilization—WARNING: He uses the F word:

Vodpod videos no longer available.

There he is, James Yeager, in all his tattooed, guns-over-country glory.  This is what we are up against, my friends. And we’re also up against the following, which is a rather frightening anecdote submitted by a good guy, Michael Barrows, on my “Holy Second Amendment Remedies” post:

I would like to share my recent encounter with the Second Amendment. I apologize for the length.

Keep in mind that I reside in Kansas, a state that has decided that smoking in certain public venue presents more danger to the occupants than concealing a firearm in that same venue would. On the weekend before Christmas, a friend and I decided to visit a local bar and catch-up with some old friends. Towards the end of the evening, the conversation, as many of late have, turned to gun control and the government. One of the people in the conversation told all of us at the table that “we wouldn’t have to worry about anything happening to us, he has his concealed carry license.” Shortly after that statement, and much to my surprise, his gun ended up in my lap. I believe my remark was “nice gun, here ya go” and quickly returned his firearm, about the same time he tells me that it doesn’t have a safety, “ya know, for quicker response time.”

Thankfully, he and the group that was with him, decided to leave shortly after that. But once they reached the sidewalk a distinctive ‘pop, pop’ sound could be heard from inside the bar. I went outside to see the group heading to another bar, with gun owner lowering the gun from the above him, after shooting it in the air.

Later that evening he fired two more shots into the air, outside of another bar, and was arrested.

Is this the type of person who is supposed to protect me from the government?

Yes, Michael, he and James Yeager will protect you from the government for about, oh, ten minutes on a good day. So, you’d better have some backup.

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  1. genegarman

     /  January 11, 2013


    “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”?

    Infringed is a word and it has a meaning: to encroach upon in a way which violates law or the legal rights of another. Or, to define it as in football, encroachment is illegally crossing the line of separation, as in between the agreed upon written rules between two teams, or in personal court ordered rules, as in between individuals, companies, states, etc.

    In both of the above common understandings, basic to understanding the essence of the Second Amendment, is the obvious rule of law: the militia is “well regulated,” the “state” is a legal order of a society, and the “people” are obviously those persons who make up the legal citizenry of the “state,” which by definition unquestionably links the “people” in a society and national order established by law. Anarchy is no more a part of the nature of a “free state” than of a voluntarily and freely played football game, composed of specific rules of order, or of a “well regulated” society of citizens. The very definition of “free state” commands voluntary and agreed upon law and order as organized by “the people,” as a whole, not as individuals.

    In conclusion, not one word of the Constitution authorizes anarchy. In other words, the Founding Fathers and the First Congress specifically penned the Constitution in terms of law and order. In order to answer any questions about the meaning of the words of the Constitution, the supreme law of the land, as my professor in an ethics class at Washburn University School of Law made perfectly clear, the framers of the Constitution, including its amendments, specifically acknowledged the existence of a Supreme Court for purposes of final definition. Finally, there is no question the Constitution, the supreme legal rules by which the game is played in the United States of America, means whatever the Supreme Court of the United States says it means, regardless of any personal opinions to the contrary!

    So, what part of “well regulated” is unclear?

    Gene Garman, M.Div.


    • What part of “well regulated” is unclear?” you asked.

      Okay, let’s start with what Scalia wrote in his opinion in the DC gun ban case, which your comment echoes:

      In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be under stood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v.  Sprague…Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

      Keeping that in mind, we can then go on to see how Scalia interpreted what he called the “prefatory clause” (the focus of your comment) and the “operative clause,” the actual “right to bear arms” language.

      Notably, and perhaps most revealingly as to why Scalia arrived at his legal conclusion in the case (forgetting for a moment that his mind was likely made up before he got the case), he began his analysis with the second part of the Amendment, the operative clause. Justice Stevens, a dissenter in the case, found this significant:

      The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced pur­pose.”…That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. … Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its read­ing is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

      It does seem unusual, unless a judge is wanting to be an advocate, or if a judge had his mind made up and simply needed some legal justification to defend his a priori decision.

      But the point I want to make here, Gene, related to yours is this: If as Scalia said (quoting a previous SC case), that,

      “[t]he Constitution was written to be under stood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning,”

      then a “normal and ordinary” reading of the Second Amendment (“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”) would have one believing that the second clause should be interpreted in light of the first.

      That is to say, as Justice Stevens wrote in his dissent:

      The Second Amendment was adopted to protect the right of the people of each of the several States to main­tain a well-regulated militia. It was a response to con­cerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

      I think any common and fair reading of the Second Amendment would conclude the same thing.

      But I want to end by saying that anarchy or unfettered gun rights was not in Scalia’s mind when he wrote his opinion. He said,

      this case represents this Court’s first in-depth examination of the Second Amend­ment, one should not expect it to clarify the entire field…

      We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibi­tion of handguns held and used for self-defense in the home…

      You can see that his opinion was limited to “handguns” used for “self-defense in the home.”  He also wrote,

      nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

      We also recognize another important limitation on the right to keep and carry arms. [Precedent says] that the sorts of weapons protected were those ‘in common use at the time’ … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’

      So, Gene, I would say that should Congress get around to passing more restrictive gun laws, particularly another ban on assault weapons and high-capacity magazines, then the NRA won’t have Scalia as a friend. And we will have at least some recognition of “law and order.”



  2. In my opinion, Duane’s post is alarming and Gene’s reasoning is spot on. Unfortunately for citizens not itching to pack heat as they go about their daily lives, gun nuts like Yeager view the issue as tantamount to a religion and hence, not amenable to regulation. Personal RPG’s, anyone?


  3. Question: If the theater really is on fire, what do you yell?


    • King Beauregard

       /  January 11, 2013

      “Jack and Jill!”


    • “By all means you guys with the guns go first!”


    • I was thinking more along the line of saying, “Ladies and Gentlemen, we are currently experiencing an instance of combustion in which fuel or other material has ignited and has combined with oxygen, thereby producing a rather intense amount of light, heat, and flame. Please leave the theater in an orderly manner.”


      • Yeah, and by the time you got all that out, only the guys with guns would get out!

        For the record, we all have taken liberties with the real thing, as O.W. Holmes wrote:

        The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.

        So, Herb, you can safely yell “Fire!” at the movies, as long as there is truly “an instance of combustion in which fuel or other material has ignited and has combined with oxygen, thereby producing a rather intense amount of light, heat, and flame.”



  4. Robert J Roberts

     /  January 11, 2013

    I’m really glad to hear some discussion about that pesky phrase, “A well regulated militia.” It has always seemed to me to be the gist of the sentence.


    • King Beauregard

       /  January 11, 2013

      It’s very peculiar that the Second Amendment offers a reason for its existence; you don’t see any comparable verbiage elsewhere in the Bill of Rights. I think they wanted to nip in the bud the notion that the Second Amendment is about shooting government officials and representatives — which, mind you, is treason, already listed as a crime elsewhere in the Constitution. So they listed a specific purpose to justify the bearing of arms, rather than leave it to peoples’ imaginations.

      That said, neither did they say “The right to form well-regulated armed militias shall not be infringed”. They kept it a lot more open-ended, and I don’t think that’s an accident.


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