From: gerard@caliban.soest.hawaii.edu (Gerard Fryer)
Subject: Is the U.S. Constitution tacit?
Originator: gerard@caliban
Organization: Scum Of the Earth and Senile Tenured
Date: Thu, 20 Aug 1992 00:47:01 GMT

The current discussions in alt.politics.clinton about the
not-too-serious suggestion to repeal the 2nd Amendment to the U.S.
Constitution raises the interesting question about how much of the
U.S. Constitution is tacit.  It is the misunderstanding of what is
tacit and what is explicit that explains the current row.  Consider the
Second Amendment:

`A well-regulated Militia, being necessary for the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.'

Apart from the redundant comma after `Arms,' this is elegant prose and
speaks volumes about the pressures of the times (in particular, the
desire to guarantee States the right to maintain a militia not under
the control of the federal government).  In their now infamous
interpretation, the National Rifle Association and their supporters
invoke this amendment to mean that "the individual has a right to bear
arms."  Of course, like Humpty-Dumpty, you can always define a word to
mean anything you want it to mean, just as you can create a verb from
any noun or write a sentence without a verb.  Such sloppiness, however,
(especially if it is intentional) is the path to Newspeak.  Therin lies
tyranny, of the sort best represented by the pre-Gorby version of the
Evil Empire.  Let this grow and we can next expect a Ministry of
Truth.

Yet the NRA has a case.  While the Constitution says nothing about an
individual's right to arms (the wordsmiths who forged the Bill of
Rights knew what they were doing and quite clearly knew the difference,
for example, between a singular "people" and a singular "individual"),
it is also clear that something more is hinted at in the Second
Amendment.  The fact is that in the 1770s people had guns.  There was
no reason why the Bill of Rights should address the question of an
individual's rights to bear arms any more than if the U.S. were being
born today it would be necessary to specify an individual's right to
own a car.  In other words, the right to bear arms was tacit.  The
Second Amendment made sure that if those armed people wanted to form
themselves into a State militia the Feds could not interfere.  But
times change.  Does an individual now have the tacit right to bear arms
when not acting as part of a militia?  In the eighteenth century he
quite obviously did have that right.  But if that right has been lost,
when was it lost?  The explicit constitution, the one written down on
paper, is of no help in answering such questions, yet poor Americans
pore over the Constitution looking for an answer. It's no wonder the
arguments are so vitriolic.

Take the car analogy a step further.  The U.S. is being born right
now.  Everyone has a car.  Nobody sees fit to write into the
Constitution the right to own a car: that right is tacit.  But times
change.  Fifty years (twenty? ten?) pass and the effects of exhaust
gases on our atmosphere are perceived as being such a threat to the
common good that an attempt is made to outlaw cars.  Can Americans
still claim a right to car ownership? Have the tacit rights changed?

The British Constitution is entirely tacit, but it is also dynamic - it
changes with the times.  In the U.K. nobody now can claim any
constitutional right to automatic weapons, just as nobody would be able
to claim any right to car ownership fifty years from now.  But what
about the U.S?  Is the tacit part of the U.S. Constitution dynamic?  Do
people now not have a Constitutional right to hand guns, for example?

Such questions are more than academic. If tacit rights are dynamic then
the U.S. citizen is at this instant losing his rights to hand guns and
automatic weapons, American women are being extended the guarantees of
the Equal Rights Amendment (even without its being ratified), and First
Amendment protections are being extended to electronic publishing.

The latter should be of concern to every Usenet geek. That reactionary
organization, the American Civil Liberties Union, has steadfastly
refused to consider any cases involving electronic distribution of
information, claiming that such publishing is not addressed in the
Constitution.  The result has been rampant censorship on many college
campuses and (in at least one case) the confiscation of computer
equipment by the Feds.  [If you maintain an electronic newspaper, make
sure that you print it out and mail it to at least a few subscribers,
just to guarantee your rights.]

If the movement to repeal the Second Amendment gets anywhere, the
present acrimonious debate about guns will have to metamorphose into a
considered discussion of tacit rights.  The American citizenry can
only benefit from such discussion.
-- 
Gerard Fryer  (g.fryer@soest.hawaii.edu)
School of Ocean & Earth Science & Technology
University of Hawaii at Manoa
Newsgroups: soc.culture.usa