Defend the Second Amendment by Restoring the Eighth

December 30, 2012.  The headline on Drudge, beneath a picture of redcoats blazing away in a Lexington and Concord re-enactment, reads: "OBAMA TO GO FOR GUNS IN 2013 / 'THERE WILL BE RESISTANCE'."

Resistance indeed there will be, and rightly so.  Fortunately, conservatives' stand against infringements on gun rights is bolstered by the Supreme Court's recent admission that, as originally understood, the Second Amendment does indeed recognize an individual right to keep and bear arms.

But another assault is under way on another part of the Constitution -- an assault that has claimed far more innocent lives over the years than did the massacres that spurred current gun-control agitation.  That other assault has long been gaining strength, and it has been bolstered by conservatives' mystifying lack of resistance.

Consider this report from The Washington Times: "Accelerating a trend, lawmakers in Colorado, Maryland and New Hampshire are expected to make a push for pulling the plug on capital punishment in the next legislative session."  That would follow Connecticut, which abolished the death penalty in 2012; ditto Illinois in 2011, New Mexico in 2009, New Jersey in 2007, and New York, whose legislature acquiesced in its abolition by state judiciary and executive actions from 2004 to 2008.  All led by Democrats.

Even where the death penalty is retained, its use is declining due to its prohibitive cost.  States find it cheaper to feed, clothe, house, and guard a murderer to the end of his days, and nurse him through the diseases of old age, than to jump through the endless legal hoops of proving to the most soft-headed appellate court in the land not only that he committed the crime, but that he deserves to die for it.

Those hoops were invented by the United States Supreme Court, in blatant disregard of the original meaning of the Eighth Amendment.  That amendment's ban on "cruel and unusual punishments" applied only to the federal government in the first place, and it referred only to torturous executions such as crucifixion, burning, boiling, drawing and quartering, etc.  It did not prohibit strangulation by hanging, which was the common practice of every jurisdiction involved in the amendment's adoption and ratification.  It did not prohibit execution for crimes other than murder, nor did it prohibit mandatory death penalties for specified crimes.  It did not require that trials of capital crimes be broken into a "guilt" phase and a "punishment" phase.  It did not require that people opposed to the death penalty be seated as jurors in capital cases, nor did it require that a battalion of lawyers, psychologists, and investigators be paid by the state to inquire into such issues as whether the murderer had a troubled childhood.

All those prohibitions and requirements flow from the Court's activist doctrine that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" rather than from the plain, practical understanding of the people who put that amendment into the Constitution.  And the current trend away from the death penalty is an open invitation for the justices to announce that standards have evolved to the point that capital punishment itself is unconstitutional.  So says an impatient New York Times.

Never mind that the Founders, one and all, held that our Constitution's original meaning -- the sense in which it was "accepted and ratified by the nation," to use Madison's words -- is the only meaning it can truly have.  Never mind Washington's precept that constitutional change must come only through "an explicit and authentic act of the whole people" -- i.e., through amendment -- never through usurpation, which, he warned us, is "the customary weapon by which free governments are destroyed."  Never mind Hamilton's promise to our Constitution's ratifiers that if the justices ever tried to usurp the people's power of self-government by legislating from the bench, Congress would surely punish their presumption "by degrading them from their stations" -- that is, by impeaching them.  Never mind that even John Marshall, supposedly the grandfather of judicial activism, said the judiciary's duty to strike down laws that violate the Constitution "cannot be the assertion of a right to change that instrument."

Liberals never mind ignoring anything that conflicts with their agenda.  But what's up with conservatives?  Yes, we argue in general terms that justices should take an "originalist" view of the Constitution, but where has that brought us?  To the public, it always gets translated into "ban abortion" or "bring back Jim Crow" or some other worrisome proposition.  "Hang murderers" and "crush crime," popular as those ideas certainly would be, somehow never become part of the discussion.

So while the left relentlessly pursues its objectives, conservatives play defense.  We'll go to the mattresses to defend the Second Amendment, but we have ignored our duty to the Eighth, and everyone pays a price for this.  Crime's victims pay in blood.  Conservative politicians pay on Election Day.

It's been excruciating to watch the Republican Party boot one election after another when the thing that can connect the GOP with so many rank-and-file Democrats is lying there, so obvious for anyone to see.  It isn't just Reagan Democrats who are keen for law and order.  Many among liberalism's special clientele -- poor people, minorities, feminists, gays, unions, the homeless, etc. -- are sick to death of gangs and violence and would love to see that all swept away.

Even in California, which went for Barack Obama 59 percent to 39 percent last November, voters also rejected a proposition to abolish the death penalty, 53 percent to 47 percent.  That second margin would have been greater if more people realized, as few do, that actual enforcement of capital punishment can be a powerful deterrent.  How many Obama voters nationwide would have responded positively to a GOP stand in favor of the death penalty and against the liberal judicial activism that has interdicted it?  Enough, I believe, to have made a difference.

What we get instead is silence.  Silence from conservatives about the one issue on which voters lost patience with liberalism long ago.  And here's some more of what that costs us: whenever a gun massacre occurs, conservatives' chronic silence about crime allows liberal gun-controllers to flatter themselves that they are the champions of public safety and the defenders of innocents, and to pass themselves off as such to the public.  These inveterate opponents of capital punishment are never made to answer for the fact that their campaign against its enforcement has caused many more Americans to die at the hands of previously convicted murderers than in any of the infamous mass shootings liberals carry on about, or in all of them put together [1].  And that says nothing of the hundreds of thousands of murders committed by killers undeterred by a death penalty that is hardly ever enforced.

Because conservatives have been silent about crime, the Newtown massacre makes us look like unfeeling bastards, more concerned about our precious gun rights than about slain schoolchildren.  We may well argue that the left's gun-control agenda is impractical, ineffectual, and unconstitutional, but if we want it to remain unpopular and unenacted, we'd better offer some "commonsense solutions" of our own.  Our slogan has long been: "Guns don't kill people; people do."  Let us follow that idea to its logical conclusion.  While liberals pursue their impossible dream of eliminating murder weapons, we should be setting about the very practical, effectual, and constitutional task of eliminating murderers.

Karl Spence is author of Yo! Liberals! You Call This Progress?  His work has appeared in the Chattanooga Free Press, American Thinker, and National Review.

[1] "The Bureau of Justice Statistics reports that in 2002, 280 of the more than 3,500 murderers then on death row had prior homicide convictions. In the 1980s, the bureau tracked paroled killers and found that 7 percent of them -- more than 220 of each year's cohort -- had been rearrested for homicide within three years of their release from prison. A decade later, a BJS study found a recidivism rate for homicide of only 1.2 percent. About 6,700 killers were paroled in 2002. Even at the lower of the previously recorded rates, more than 75 of them will have taken another life by now -- and that's just a single cohort's worth of state-enabled mayhem."  That excerpt from Yo! Liberals! may be accessed online here.

December 30, 2012.  The headline on Drudge, beneath a picture of redcoats blazing away in a Lexington and Concord re-enactment, reads: "OBAMA TO GO FOR GUNS IN 2013 / 'THERE WILL BE RESISTANCE'."

Resistance indeed there will be, and rightly so.  Fortunately, conservatives' stand against infringements on gun rights is bolstered by the Supreme Court's recent admission that, as originally understood, the Second Amendment does indeed recognize an individual right to keep and bear arms.

But another assault is under way on another part of the Constitution -- an assault that has claimed far more innocent lives over the years than did the massacres that spurred current gun-control agitation.  That other assault has long been gaining strength, and it has been bolstered by conservatives' mystifying lack of resistance.

Consider this report from The Washington Times: "Accelerating a trend, lawmakers in Colorado, Maryland and New Hampshire are expected to make a push for pulling the plug on capital punishment in the next legislative session."  That would follow Connecticut, which abolished the death penalty in 2012; ditto Illinois in 2011, New Mexico in 2009, New Jersey in 2007, and New York, whose legislature acquiesced in its abolition by state judiciary and executive actions from 2004 to 2008.  All led by Democrats.

Even where the death penalty is retained, its use is declining due to its prohibitive cost.  States find it cheaper to feed, clothe, house, and guard a murderer to the end of his days, and nurse him through the diseases of old age, than to jump through the endless legal hoops of proving to the most soft-headed appellate court in the land not only that he committed the crime, but that he deserves to die for it.

Those hoops were invented by the United States Supreme Court, in blatant disregard of the original meaning of the Eighth Amendment.  That amendment's ban on "cruel and unusual punishments" applied only to the federal government in the first place, and it referred only to torturous executions such as crucifixion, burning, boiling, drawing and quartering, etc.  It did not prohibit strangulation by hanging, which was the common practice of every jurisdiction involved in the amendment's adoption and ratification.  It did not prohibit execution for crimes other than murder, nor did it prohibit mandatory death penalties for specified crimes.  It did not require that trials of capital crimes be broken into a "guilt" phase and a "punishment" phase.  It did not require that people opposed to the death penalty be seated as jurors in capital cases, nor did it require that a battalion of lawyers, psychologists, and investigators be paid by the state to inquire into such issues as whether the murderer had a troubled childhood.

All those prohibitions and requirements flow from the Court's activist doctrine that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" rather than from the plain, practical understanding of the people who put that amendment into the Constitution.  And the current trend away from the death penalty is an open invitation for the justices to announce that standards have evolved to the point that capital punishment itself is unconstitutional.  So says an impatient New York Times.

Never mind that the Founders, one and all, held that our Constitution's original meaning -- the sense in which it was "accepted and ratified by the nation," to use Madison's words -- is the only meaning it can truly have.  Never mind Washington's precept that constitutional change must come only through "an explicit and authentic act of the whole people" -- i.e., through amendment -- never through usurpation, which, he warned us, is "the customary weapon by which free governments are destroyed."  Never mind Hamilton's promise to our Constitution's ratifiers that if the justices ever tried to usurp the people's power of self-government by legislating from the bench, Congress would surely punish their presumption "by degrading them from their stations" -- that is, by impeaching them.  Never mind that even John Marshall, supposedly the grandfather of judicial activism, said the judiciary's duty to strike down laws that violate the Constitution "cannot be the assertion of a right to change that instrument."

Liberals never mind ignoring anything that conflicts with their agenda.  But what's up with conservatives?  Yes, we argue in general terms that justices should take an "originalist" view of the Constitution, but where has that brought us?  To the public, it always gets translated into "ban abortion" or "bring back Jim Crow" or some other worrisome proposition.  "Hang murderers" and "crush crime," popular as those ideas certainly would be, somehow never become part of the discussion.

So while the left relentlessly pursues its objectives, conservatives play defense.  We'll go to the mattresses to defend the Second Amendment, but we have ignored our duty to the Eighth, and everyone pays a price for this.  Crime's victims pay in blood.  Conservative politicians pay on Election Day.

It's been excruciating to watch the Republican Party boot one election after another when the thing that can connect the GOP with so many rank-and-file Democrats is lying there, so obvious for anyone to see.  It isn't just Reagan Democrats who are keen for law and order.  Many among liberalism's special clientele -- poor people, minorities, feminists, gays, unions, the homeless, etc. -- are sick to death of gangs and violence and would love to see that all swept away.

Even in California, which went for Barack Obama 59 percent to 39 percent last November, voters also rejected a proposition to abolish the death penalty, 53 percent to 47 percent.  That second margin would have been greater if more people realized, as few do, that actual enforcement of capital punishment can be a powerful deterrent.  How many Obama voters nationwide would have responded positively to a GOP stand in favor of the death penalty and against the liberal judicial activism that has interdicted it?  Enough, I believe, to have made a difference.

What we get instead is silence.  Silence from conservatives about the one issue on which voters lost patience with liberalism long ago.  And here's some more of what that costs us: whenever a gun massacre occurs, conservatives' chronic silence about crime allows liberal gun-controllers to flatter themselves that they are the champions of public safety and the defenders of innocents, and to pass themselves off as such to the public.  These inveterate opponents of capital punishment are never made to answer for the fact that their campaign against its enforcement has caused many more Americans to die at the hands of previously convicted murderers than in any of the infamous mass shootings liberals carry on about, or in all of them put together [1].  And that says nothing of the hundreds of thousands of murders committed by killers undeterred by a death penalty that is hardly ever enforced.

Because conservatives have been silent about crime, the Newtown massacre makes us look like unfeeling bastards, more concerned about our precious gun rights than about slain schoolchildren.  We may well argue that the left's gun-control agenda is impractical, ineffectual, and unconstitutional, but if we want it to remain unpopular and unenacted, we'd better offer some "commonsense solutions" of our own.  Our slogan has long been: "Guns don't kill people; people do."  Let us follow that idea to its logical conclusion.  While liberals pursue their impossible dream of eliminating murder weapons, we should be setting about the very practical, effectual, and constitutional task of eliminating murderers.

Karl Spence is author of Yo! Liberals! You Call This Progress?  His work has appeared in the Chattanooga Free Press, American Thinker, and National Review.

[1] "The Bureau of Justice Statistics reports that in 2002, 280 of the more than 3,500 murderers then on death row had prior homicide convictions. In the 1980s, the bureau tracked paroled killers and found that 7 percent of them -- more than 220 of each year's cohort -- had been rearrested for homicide within three years of their release from prison. A decade later, a BJS study found a recidivism rate for homicide of only 1.2 percent. About 6,700 killers were paroled in 2002. Even at the lower of the previously recorded rates, more than 75 of them will have taken another life by now -- and that's just a single cohort's worth of state-enabled mayhem."  That excerpt from Yo! Liberals! may be accessed online here.

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