A campaign that has effectively made it a policy to shock the American people on a daily basis made what some critics might call a “gaff” this past Tuesday, when he seemed to imply the use of force by private citizens in case Hillary Clinton is elected in November.
“Hillary wants to abolish — essentially abolish the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know,” Trump muttered in his standard stream of unconsciousness that has become his trademark oratorical style.
Was Trump really implying that people take matters into their own hands when Clinton starts to put her judges on the bench (either to assassinate the president, or her judges)? Obviously the campaign says that it was “sarcastic,” “a joke.” This sarcastic joke emanated from a campaign whose key link to the people has been the idea that Trump “speaks his mind,” and “says what he means.” Well, once again we have to ask: does he or doesn’t he?
In fact, Trump never used the actual words, never included a verb; not unusual for a man whose “speeches” rarely involve sentences that any English teacher would let by without a generous use of the infamous red pen. Instead, he said something without saying anything; and his campaign has implied that perhaps Trump was talking about the “second amendment people” uniting politically to pressure the government not to name or confirm certain judges not passing the right’s own tests for political correctness. But we also have to realize that Trump has raised a violent force, a party not unlike the brown-shirts of Hitler’s Sturmabteilung, willing and able to follow the leader’s exhortations to violence. Certainly such “implications” were followed by conservative followers in the past, as when after Sarah Palin put Rep. Gabby Giffords’s name on a “target list,” Giffords was, in fact, shot. And if the college-educated reporters and leaders of the nation can see the threat of violence in the ambiguity of the words, what must the people whom Trump has congratulated for being “poorly educated” read into those words? Trump can pretend a “plausible deniability” when someone takes a potshot at either Clinton or a justice whom she appoints; but that will not separate him from the blame behind such an act if it occurs.
Another, darker problem lurks behind the “gaff.” Trump claims, and his followers accept unquestionably, two problematic axioms: first, that Hillary Clinton is opposed to the Second Amendment; and second, that he himself will support and somehow strengthen the Second Amendment (as shaky and weak as he implies it is, what with mass shootings and demonstrations of open carrying of military-style weapons being merely a daily occurrence). Both contentions are, of course, ridiculous. Clinton has never opposed the Second Amendment, or the implied right to own firearms; and in fact she has on numerous occasions said the opposite. Obviously Trump’s opponents do not so much care about Clinton’s words, as they do not trust anything that she says anyway. Equally ridiculous is the notion that a candidate without a shade of understanding of basic constitutional principles, and who as a businessman has made much of his wealth by breaking contracts, could be trusted to preserve what many consider to be a basic constitutional right. Again, however, the shakiness of such a notion is missed by the masses who care nothing of Trump’s record of failure and unreliability. The dog whistle sounds the alarm of the Second Amendment, and the dogs then howl as required.
Another problem, one often ignored even by politicians like President Obama and Secretary Clinton, is the actual right provided by the Second Amendment – or more accurately, the right not so provided. The words of the Amendment, words that have troubled scholars to elucidate for others, are as follows:
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.
What most readers miss is the fact that no rights of the individual are recognized or provided by this amendment. The gun-owner clings to his gun on the basis of “the right of the people”; but in the Constitution and in the Bill of Rights (the first ten amendments), as well as in the Federalist Papers, written by three of the framers of the Constitution and Bill of Rights, the rights of “the people” are not the same rights as those for the individual. The framers referred to “the people” as the embodiment of popular power; be that the elected governments of the several states, or other corporate bodies of popular power. Whenever the framers wished to make abundantly clear to the reader that a right was for individuals, they named individuals, or left vague references to “the people” out entirely. The right to protection against quartering is secured for “the Owner [of a house]”; trial rights are secured for “the accused”; other rights are promised to “persons” (individuals). The right to freedom from government interference in speech and religion simply denies the government a right to make laws at all, without referencing either individuals or “the people.” Nowhere in the Second Amendment do the framers actually suggest that individuals themselves have any specified rights under that act. The right of the people to keep and bear arms is the right of the states, separate from the federal authority of the US Government. The Second Amendment promised the states that they could and should maintain “well-regulated militia” for their own security, both from foreign invasion as well as from each other’s militia and from federal measures of force in their territories.
All references by the framers to “the people” were to corporate entities, not individuals. In fact, that reference created animosity by such leaders as Patrick Henry who saw in the very preamble of the Constitution that the words “We the People” were written by delegates to the Constitutional Convention as selected by the states’ governments, and were not in fact representatives of the people themselves, let alone free individuals speaking solely for themselves. “We the People” were the states. The rights of “the people” were the rights of the states, not the rights of the individual inhabitants of the states. It is also true that at the time, most states had militia based on private owners of their own weapons (in addition to every state maintaining central arsenals of both artillery and extra infantry weapons, the latter for those soldiers who had none of their own or lost theirs in combat). Private ownership of weapons was preferred by the states as a means of reducing the cost of maintaining public arsenals. But the Second Amendment does not specify that private ownership itself is either sufficient or necessary to the defense of a state. Instead, the presence of a state-run and well-regulated militia is needed for state defense. The states insisted on their rights to protect themselves from each other (at a time when state animosities toward each other was quite high, and many border and trade issues unresolved), and from a larger federal military (which the framers argued in the Federalist Papers to be more conducive to a credible deterrence of external aggression, but which could also be used by a tyrannical central authority to force undesired measures upon the states).
However, the Constitution is not merely a historical document, but a living contract subject to interpretation by the US Supreme Court. What the Court ultimately says about the Constitution, and about how the rights therein are to be protected or interpreted, determines what the Constitution is for those to whom the Court’s musings apply. In Heller v District of Columbia, in 2003, the Court finally decided that the Amendment does indeed guarantee the individual a right to own a firearm, separate from any need of state or federal regulation of militia, and separate from the use of such firearms for the security of the states. For now, regardless of what our framers meant by “the people,” “the people” are indeed the individual citizens of the nation. And both the militia clause and the security clause are considered inoperative and irrelevant to the rights of the individual. The Court has overturned its own decisions before; and therefore at some point a future Court may well decide either to reattach the militia and/or security clauses to the right, and/or to define that right as not individual but corporate. However, that is for the future.
In the meantime, we have a problem of who exactly the “second amendment people” are, the people vaguely referenced to in Trump’s distorted mutterings. Are they gun owners, or the NRA (who consider themselves to be a constitutional rights advocate), or the gun industry (notwithstanding the NRA’s role as the industry’s chief corporate lobbyist)? Who are these people to whom Trump held his hand to say, “maybe there is,… I don’t know”? He himself obviously would have a difficult time answering that question, although the ease with which he can accept endorsements and donations from the gun lobby is unquestionable. Trump’s failure to know what even he is saying as he may, or not, be saying it, is frightening in what those who follow him may decide that he was saying (such as the followers who easily obeyed Palin’s later denied exhortations to shoot people like Gabby Giffords). But Trump’s failure to know what even he means is even more frightening as we envision a nation presided by a man exhibiting clear symptoms of dementia and who (unlike Pence, who some have hinted might be more responsible for certain governing roles), would actually have control of our nuclear codes. If the missile hatches are ever opened, we need a leader to know what she says, what she means, what she expects from her supporters and from the nation, and what the nation that elected her stands for and expects from her. Trump is unquestionably not that leader.