That construction has several fathers (Jefferson, Lincoln and Justices Jackson, Goldberg, Posner) but I think Jefferson’s is the best for illustration purposes. He wrote this when the constitutionality of the Louisiana Purchase was questioned (sounds awfully tea party to question the constitutionality of the Louisiana Purchase doesn’t it?):
“[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
Essentially, while the law is good, if following it would threaten life, liberty and property then choose life (to mix Jefferson and Frankie Goes to Hollywood for the philosophical win!).
The right and left both observe this on different issues.
Regarding the threat of Islamic terrorism the right have gladly thrown the 1st, 4th, 5th, 6th, 7th & 8th under the constitutional bus. Overall, as Jon Stewart has illustrated, their dedication to the Bill of Rights seems rather spotty except for the 2nd amendment and the 10th. Pretty sure they’d hate the 3rd too if it was at all relevant.
To be fair to their argument, Islamic terrorists (but not Christianist terrorists, ok, not that fair to their argument) are such a threat (a noun, a verb & 9/11) that almost anything we do to protect the homeland is okay under Jefferson’s construction. And if the individuals in question are not even American citizens, like those under indefinite detention at Gitmo, then what are we even talking about? Lindsay Graham and neo-cons engaged in anti-Islamic jihad will move heaven and earth to prevent any more high body count tragedies like 9/11, or even low body count tragedies like the Boston Marathon. No American should ever be killed by a Muslim anywhere and we’ll send our armies anywhere to die for that principal.
The left uses the construction to attack adherence to the 2nd amendment, believing generally that even if you don’t believe the entire amendment is an anachronism, the “well regulated militia” part as well as common sense should allow great latitude in gun/firepower control. The 2nd amendment does not allow for limitless availability to ordnance, automatic weapons, semi-automatic weapons, military style weapons, teflon coated bullets, high capacity magazines, etc. etc. etc. The protection of life against the criminal and the insane should allow states and localities to decide what gun control provisions make sense to them.
So it’s just a matter of what threat motivates you, gets under your skin, speaks to your fear.
But fear is irrational unless there is concrete threat. Statistics that back up your fear. And the numbers here are not squishy.
Number of Americans killed in domestic terrorist attacks, 2002-2011: 30. Hey even if you go back a year and include 9/11 it’s still around 3,000. But if you go back to 1980, 1970, it’s still around 3,000. It just doesn’t happen very much and if not for that one day in 2001 it would be such an anomaly that more people drown in the U.S. every year (around 3700) than were killed by terrorists in 40 years.
Number of Americans murdered by firearms, 2000-2011: 115,997. Since 1980 it’s over 900,000 Americans killed by gun violence. In 2010 (a typical recent year, unfortunately) there were 31, 672 injuries by firearm, 11,078 murders by firearm, and 19,392 suicides by firearm.
So with the vast disparity in numbers it’s clear what the very serious people who rule us would choose as their priority, right? It can’t even be close, right? Yeah, no, it’s not. There’s a 1000 – 1 spending gap on terrorism vs. gun violence. Andrew Cohen, in the Atlantic even before Newtown asked:
My question now is simple: Why do we spend at least 1,000 times more money protecting ourselves from terrorism than we do protecting ourselves from gun violence? I’m not necessarily suggesting that we spend less on anti-terrorism programs. Like everyone else, I am grateful there have been no mass casualty terror events since 9/11. I’m just wondering, instead, what possible justification there could be for spending so relatively little to try to reduce the casualties of gun violence.
Surely the Second Amendment alone — and the United States Supreme Court’s recent rulings in District of Columbia v. Heller and McDonald v. Chicago — cannot explain this contrast. Our government has asked us consistently since 9/11 to sacrifice individual liberties and freedom, constitutional rights to privacy for example, in the name of national security. And we have ceded these liberties. Yet that same government in that same time hasn’t asked anyone to sacrifice some Second Amendment rights to help protect innocent victims from gun violence.
Hard to understand why we have such a disparity in our political view of where the danger is. As the Guardian noted:
It is a surreal and difficult-to-explain dynamic. Americans seemingly place an inordinate fear on violence that is random and unexplainable and can be blamed on “others” – jihadists, terrorists, evil-doers etc. But the lurking dangers all around us – the guns, our unhealthy diets, the workplaces that kill 14 Americans every single day – these are just accepted as part of life, the price of freedom, if you will. And so the violence goes, with more Americans dying preventable deaths. But hey, look on the bright side – we got those sons of bitches who blew up the marathon.
Like most head scratchers in the political sphere the answer is to follow the money. Nobody ever lost an election by demagoguing against foreign evildoers. While actual safety is not all that motivating a factor to Americans given the real threat of guns, climate change, high fructose corn sugar, ammonium nitrate, etc. In every case there is a lobby that stands to lose money, whether it’s the defense and security industry, the gun industry, the fossil fuel industry and the corporate food industry.
So I suppose, perhaps naively, that if the money were taken out of politics we would suddenly find our priorities actually making sense. Which is also not rational, but I believe it nevertheless.