James McMurtry: A Tricky Question

GA 10-13

For his latest “Wasteland Bait & Tackle” blog, the songwriter revisits the guns issue.

 By James McMurtry

      I’ve been an avid reader of gun magazines since I was about nine years old.  Reading about guns was one of my favorite methods of putting off homework. I can’t remember when I first saw Dick Metcalf’s byline, but it seems as if he’s been writing for one gun magazine or another more or less forever. I didn’t read much of Metcalf’s writing because he tended to write about gun law, a subject in which I had little interest at a young age. When putting off sixth grade history homework assignments, one does not want to see the word “Constitution” in a gun magazine. But the byline was always there somewhere in Shooting Times or Guns and Ammo, along with those of many others, Colonel Jeff Cooper, Skeeter Skelton, Jon Sundra, familiar names that inhabited one of my favorite refuges from the world of what had to be done. My favorites, Cooper and Skelton, have passed on. Mr. Metcalf is still among the living, but his byline has vanished.

 “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.” —2nd Amendment, Constitution of the United States of America

      In the column for which he was fired, titled, “Let’s Talk Limits”, published on the back page of the October 2013 issue of Guns and Ammo, Mr. Metcalf brought up a rather fine point of constitutional language, one that hadn’t occurred to me, anyway.

      “Those last four words say ‘shall not be infringed’, they do not say, ‘shall not be regulated.’” Metcalf goes on to state that all Constitutional rights are regulated and need to be.

     “Freedom of speech is regulated. You cannot falsely and deliberately yell ‘Fire!’ in a crowded theatre. Freedom of religion is regulated. A church cannot practice human sacrifice. Freedom of assembly is regulated. People who don’t like you can’t gather an ‘anti you’ demonstration on your front lawn without your permission. And it is illegal for convicted felons or the clinically insane to keep and bear arms… The question is, when does regulation become infringement?”

         Mr. Metcalf brings up a tricky question, and one which a lot of Guns and Ammo readers and advertisers would rather no one ever even considered. The backlash was swift and vitriolic. Two major gun manufacturers threatened to stop doing business with G&A’s parent company. Nasty emails flooded in from readers, many of whom seemed to think that Metcalf had no understanding of the second amendment, when in fact Metcalf is a constitutional scholar who has taught at both Yale and Cornell. He has testified before Congress and helped draft the 1986 Volkmer-McLure Firearms Owners Protection Act. I’d be willing to bet Metcalf does have a pretty good understanding of the second amendment as well as several of the others.

     I found it difficult to find Metcalf’s actual article online. I eventually found it through a link from Business Insider, and it is a well written piece.  [Ed. note: you can click here to download a pdf of the original piece.]  But when I first googled Metcalf’s name, all that seemed to come up were the reactions to the piece which would have been hilarious, were they not real reactions from real people. Someone called Metcalf a “Gun Control Collaborator.” Wow. We sure love to bring up Nazi analogies these days.

     Way back in the seventies, I remember meeting people on the left who might have been as dogmatic as those I now meet on the right. They had ideas that they recited as mantras, but they hadn’t done much shooting. Some of did seem to think guns should be done away with. Maybe the modern NRA is a reaction to that. But the left seems to have moved on, preferring to worry about health care. And I quit the NRA when Charlton Heston was president. I just got sick of the rhetoric.

     After forty years of the NRA’s shrill warnings that the government is coming to take our guns away, forty years during which the government hasn’t come to take our guns away, forty years during which gun laws in some states have become more lax, people are still dead certain that they’re about to lose their gun rights and they had better, therefore, buy all the guns they can right, by God, now.

     “We are locked in a struggle with powerful forces in this country who will do anything to destroy the Second Amendment,” said Richard Venola, a former editor of Guns & Ammo. “The time for ceding some rational points is gone.” (New York Times, January 4, 2014)

     I don’t think so, Mr. Venola, could you please name one of these “powerful forces” we keep hearing about? More likely we’re locked in a struggle to keep a profitable industry from slipping into marginal status. It’s happened before. There were some major bankruptcies and re-organizations among gun manufacturers in the nineties. I might have mentioned, in an earlier blog, that my favorite of my pistols is a ninety-year old Colt New Service in 44-40. It still works fine. It’s not likely to need to be replaced. Modern guns also tend to be well built, because if they’re not, lawsuits will happen. So very few guns ever need to be replaced, the only way to sell more guns is to make people want more guns. The scare tactic works well, especially when paired with a Democratic Administration. I was in a gun store that has an indoor range, waiting to sight in a rifle shortly after Obama was first elected President. The place was a zoo, and the staff was grinning ear to ear, bragging that they couldn’t keep black rifles on the shelves thanks to Obama. Ammo shelves look like something out of Castro’s Cuba these days. But Obama hasn’t taken our guns away as he was predicted to do, even in the wake of Newtown. Oh, and, Mr. Venola, you say, “The time for ceding some rational points is gone.” Surely you realize, Mr. Venola, that you just more or less admitted that there are some rational points that could be ceded.   

     If rational points don’t need to be ceded, they at least need to be discussed. We can’t have a nation without discussion and compromise. This culture war is stupid and completely unnecessary to anyone or anything, except possibly to the profits of a few. I haven’t studied the business models of gun manufacturers, but when I see a moronic conflict I usually smell money all over it and this one’s no different. People like myself who like guns will buy a gun and a box of shells now and then. Hysterical people who think they need guns and ammunition to fight off Wayne La Pierre’s mythical “jack booted government thugs” will buy a whole bunch of guns, and they’ll buy a case of 7.62 Soviet or 5.56 NATO whenever they can find one. So there is a bit of an incentive for the gun companies to want to keep people hysterical. I don’t think gun manufacturers are evil and I want them to stay in business so I can sample their products. They’re making cool stuff these days. They learned from the trials of the nineties, came up with innovative new production techniques (by which I mean, investment casting and the like, not Chinese slave labor) and are turning out highly functional, wonderfully accurate, yet affordable guns. That’s exactly what companies should do when they hit rough times. They seem to have made it through the rough spell. Must they still fan the flames of hysteria? I hate to think of all the rounds that will never be fired because Papaw got old and died and forgot to tell Junior where he buried his bullets. But our world turns on its next quarter’s profits and the quarterly report won’t care if the rounds were fired or buried as long as they were paid for first.

     Of course, the gun industry is not the only industry contributing to our cultural divisions. Entertainment is all over it. And we seem to be mimicking the entertainment industry, devolving into a nation of stereotypes, one big reality show with a country/hip hop soundtrack, scripted and sculpted to resemble some Hollywood dream of every white man’s America, where rednecks are proud of the moniker, though their cotton farming great grandparents are spinning in their graves at the very notion, because they worked like hell to elevate their descendants from the mere suggestion of the term “redneck.” (I know, it’s not derogatory now, but I’m just barely old enough to remember when it was.) There’ seems to be no role in the script for people like Dick Metcalf, who refuse to mold to the stereotype.

     Right, I was writing about the necessity of discussion in a free society. So was Mr. Metcalf.

  “. . . our intention was to provoke a debate, not to incite a riot (which is illegal under laws regulating the 1st Amendment).” —Metcalf’s response to his firing, Outdoor Wire

     We must have a discussion. We must grapple with Mr. Metcalf’s question, “. . .when does regulation become infringement?” Not many of us are likely to agree. Conclusions, if there are any, are likely to vary state to state. Good thing we have fifty states.

     Oh, and could we please not ostracize our fellow Americans for pointing out simple linguistic distinctions such as the difference in meaning between the words “regulate” and “infringe?” And could we please not ostracize our fellow Americans for posing valid questions? We still call our country a democracy, therefore we have the right, and possibly the duty, to question.


 Texas-based blogger, rocker and raconteur James McMurtry covers culture, politics and more for BLURT. Go here to read his earlier discussion of guns (along with mental illness, crime bills, etc.), “More Than Just a Tall Order,” which he wrote not long after the Sandy Hook tragedy.


2 thoughts on “James McMurtry: A Tricky Question

  1. TXDadoo

    Metcalf was fired and ostracized because he used his role as the editor of an issue-oriented magazine known by its readers to advocate strongly for a particular position to voice a wrong-headed opinion (more on that below) that was perpendicular to the magazine’s historical, stated goals. It would be something like an editor of The Nation publishing an editorial in The Nation in favor of privatized social security or questioning the value of affirmative action in higher education. That editor would quickly find himself out of a job and discredited among his former peers.

    One of the core problems with Metcalf’s question is that it assumes that “regulated” and “infringed” in the Second Amendment are referring to the same thing. To the people who wrote the Constitution, a well-regulated militia was one that was well ordered or well disciplined. That word was not understood to contemplate government rule-making or micromanagement with regard to the right to keep and bear arms.

    More importantly, though, that prefatory clause did not and does not circumscribe the right protected by the Second Amendment, like many gun control proponents want to believe. It merely declares the core reason why the drafters believed that un-infringible right worthy of acknowledgement and protection in the Bill of Rights. If they had wanted to confirm that “the right of the militia to keep and bear arms shall not be infringed,” they could have written that instead. They didn’t, though, because the right in question is broader than that.

    No other right is protected as unequivocally in the Constitution as the right to keep and bear arms: “…shall not be infringed.” *Anything* that burdens a right constitutes an infringement. We really don’t need to have a long discussion on that point. Just like waiting periods and mandatory ultrasounds burden, and thereby infringe, the right of a woman to obtain an early termination to a pregnancy. Only, the right to abortion is not protected as explicitly and clearly as the RKBA. (Some, obviously, would argue that it is not protected by the Constitution at all.)

    Moreover, there already have been myriad burdens placed on the right to keep and bear arms, beginning with the NFA in the 1930s, the Gun Control Act of 1968, the Hughes Amendment, the Brady Bill, the (now thankfully expired) assault weapons ban, and legion state laws. The right is already infringed. Every day, in every state across the nation. Even in Texas, where I also live.

    We are long past “compromise” and “dialog.” For Metcalf to have suggested that more of the same is needed – that we haven’t already ceded enough – was foolish, especially given his position and the forum in question. Some of the nastier comments and threats he received certainly were beyond the pale, and I do not support that kind of behavior, as inevitable as the Internet seems to have made it. However, given Metcalf’s experience, I find it very difficult to believe that he was not expecting what happened when he submitted his editorial for publication.

  2. H_Preston

    I don’t own or shoot a gun, I just like to argue/debate. So to this end I agree with Metcalf’s response. This doesn’t invalidate any of my ideas except to those who are so narrow minded that fear penetrates the very heart of critical thinking.
    Personally (just from an intellectual stimulation exercise..since I don’t use guns. If it came down to having to use force I’d prefer grenades…never used one of those either but seems more my style) I think government has a right to regulate guns in the sense that they document and censor mentally impaired citizens from weapons because this would go under the heading of not hurting oneself or others on purpose accept in self defense.
    This is the tricky part as mentioned in the article. If you look back into the history of it all, the reason we had the amendments put in was according to history the original constitution was LACKING. It was lacking the “provision” made to an “incorporated” document from Federal Constitution AND State Constitutions into a nice uniform UNITED states.
    The amendments were put in (in my world view) so as to grant CITIZENS certain rights that were lacking in the Federal Constitution. So when we look at 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.” In my opinion (which is worth as much as your opinion) is the right of Citizens to bear arms. Through logic a Militia is made up of individuals to make a group. So we are back to age old question are the parts bigger than the whole? No, but he parts make up the whole and the parts were what the amendment was all about.
    “The concept of selective incorporation first arose with the passage of the 14th Amendment after the Civil War. This amendment laid down important new rights of citizens, including the rights to equal protection and due process. It extended the rights outlined in the first 10 amendments to the Constitution, a section also known as the Bill of Rights.”- Law.com

    The first ten amendments obviously came first (thank you Ms Millick for teaching me count to ten) which under the very first amendment gives it’s citizens to as individuals to form a group. Number ten states-“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”…..or to the people (citizens). Nine talks about rights”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Which comes to the golden egg number two 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. ”
    1. individuals right to form a group (militia) of the people to keep and bear arms.
    2. to do any regulating such as abolishing these rights is an infringement of it’s citizens rights.
    I sincerely can’t see how it can be interpreted any other way without totally disregarding what the Constitution blatantly says. I mean it took a whole group of them to come up with this so they understood the concept of the individual working with the frame work of a group to protect its’ self from harm.
    End of conversation- Thank you Mr. Calf for your intellectual probing of a very important question and thank you Mr. McMurtry for another one sided conversation. Looking forward to the new record.

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