Something I can say without fear of contradiction about the 2nd Amendment is that it is part of our Constitution, it has not been repealed or amended, and it must mean something. Let’s take a look at the language:
AMENDMENT II
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.
There are two parts to it. The bottom line is: “the right of the people to keep and bear arms, shall not be infringed.” The part about a well regulated militia has no legal bearing. It’s merely explanatory. And one wishes it did a bit more explaining.
Imagine a hypothetical amendment that said, “The use of a horse is necessary for the movement of a freeman, therefore each citizen shall be provided with at least one horse.”
We could all agree that in the 21st-century such an amendment is an anachronism. But, until we did something to change the Constitution, we’d all still be entitled to a free horse. In other words, it doesn’t matter if we no longer agree that our security depends on a well-regulated militia, or even if we think gun ownership has anything to do with how well-regulated a militia might be. If we think the 2nd Amendment is outdated, we ought to change it.
However, there is one further problem in interpreting the 2nd Amendment. We might concede that legislatures cannot infringe on our right to bear arms, but we know that we can’t possibly have the right to own our own nuclear weapon. Some kind of line needs to be drawn between a right to a musket and a right to a thermonuclear device.
Once we start deliberating about where we should draw that line, we are forced to revisit the rationale for our right to bear arms. Why did the Founders think it was so important that we have a well-regulated militia?
The answer to this is actually fairly simple, but understanding the answer is a bit more complicated. The simple answer is that the Founders saw militias as an alternative to what they called “standing armies.” These were assemblies of permanent soldiers who needed to be paid in peacetime as well as during war. Providing them with housing and food and training was expensive, and they tended to act like locusts who had little regard for people’s property rights. Their expense also made it hard to justify keeping them organized without finding some use for them. Here are some quotes about standing armies from the late 18th-Century.
“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [I Annals of Congress at 750 {August 17, 1789}])
“…but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights…” (Alexander Hamilton speaking of standing armies in Federalist 29.)
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States” (Noah Webster in ‘An Examination into the Leading Principles of the Federal Constitution’, 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))
The initial idea was that the federal government should not establish a standing army. And other than a regiment that guarded West Point and another that roamed the western frontier, the federal government had no standing army for its first few years of existence. The Legion of the United States was a small standing army that existed between 1791-1796. It wasn’t until the conflict with the British in the War of 1812 that we realized that we needed to have a standing army. The militia model went out of existence.
One could argue that the rationale of the 2nd Amendment was essentially discredited by 1812. Or, conversely, one could argue that we made a mistake in allowing a permanent standing army and that we should disband our armed forces and replace them with well-regulated militias. I mention this latter possibility not because it is plausible, but because the Founders had well-founded reasons for fearing standing armies and for preferring militias made up of self-armed citizen-farmers. That their vision proved impractical doesn’t mean that we don’t still have reason to arm ourselves as a check against tyranny.
Or, maybe, the impracticality of the vision does destroy that reasoning since we have no realistic chance of checking the power of the Pentagon through the use of any arsenal we might realistically acquire.
In any case, the 2nd Amendment had nothing to do with hunting or personal protection against common criminals. The right to bear arms was seen as a way to check the power of the federal government and to provide an alternative to standing armies. Since bearing arms in today’s America cannot substitute for the Army, Navy, Air Force, and Marines, nor can it realistically prevent the federal government from doing almost anything it wants to do, the entire legitimate rationale for the 2nd Amendment has been obliterated.
It makes little sense to argue that we have the right to hunt and protect our property, and only need arms suitable for those tasks. Nor does it make sense to argue that we must be as well-armed as the Air Force so that we may keep tyranny at bay.
We seek a cut-off point between the musket and an ICBM where we might uphold the right to bear arms, honor the spirit of the 2nd Amendment, and not act like insane people. But we can find no solution that can satisfy all three of those requirements.
The right to bear arms is indisputable. We just don’t know what “arms” are, or why we should have the right to bear them.
Add to this that we have no political will to decide any of these questions one way or the other.
The last time we had such an impasse was over the Jim Crow Laws, and the Court stepped in and put their thumbs on the scale, which created the momentum Congress needed to break their gridlock. It happened again with abortion rights, with less satisfactory results.
What I know for sure is that we ought to have legislatures figure out why we have a right to bear arms, what “arms” are, and then decide how we can best protect the public safety. Talking about guns in the context of the 2nd Amendment is a disaster.
Well I always suspected that the problem arose when people assumed that the two were meant to be separate. Color me naive but it seemed reasonable to think that a social compact to join together to protect a newly formed state meant that the state was declaring its own right to protect itself in the measure of its citizens. It was a call to arms to protect sovereignty.
nor can it realistically prevent the federal government from doing almost anything it wants to do, the entire legitimate rationale for the 2nd Amendment has been obliterated.
Not necessarily, one could argue a point that our well regulated militias are our modern day National Guards, controlled largely by states’ governors. Times changed and so did their mission.
Also, not to be a grammar Nazi, but those are commas, not periods, not new paragraphs, in the second amendment. The third and fourth part can not be severed from the first two parts, in language. I know scotus says otherwise, but they’re often wrong. English language that was spoken and written at that time is different than it is interpreted today.
I see the second amendment as being the framework of what is today’s National Guard, not a weapons free for all.
You’re right, historically speaking. Today’s National Guards are the lineal descendants of state militias.
There’s another whole debate to be had about whether the way they’ve been nationalized and woven into the Dept. of Defense is a merely a change of degree, or whether it’s a change of kind such that the Guard is more like the “standing armies” of the late 18th century than it is the local militias of that era.
The National Guard is a rough analogy for a militia, but it is different enough in structure and intent to make it unsuitable for the purposes of the 2nd Amendment.
Having beaten the Imperial British forces with a ragtag group of farmers, the Founders had too much faith in the ability of farmer-soldiers to keep an equal footing with standing armies.
The point wasn’t to supplement the standing army with an army for each governor. The point was not to have a standing army in the first place.
I’d argue that it would be completely legally legitimate to go to the Supreme Court and argue that the Pentagon violates the 2nd amendment and is unconstitutional.
I would also hope that the Court would ignore the legitimacy of my argument and rule against me.
What about armed police forces? My read on the standing army argument has been for roughly the last couple decades that the sheriff/posse model derives from a similar notion that armed professional police are essentially an standing professional army.
The National Guard is a rough analogy for a militia, but it is different enough in structure and intent to make it unsuitable for the purposes of the 2nd Amendment.
No, it is exactly that.
The Army National Guard is the oldest component of the United States armed forces. Militia companies were formed with the first English settlement at Jamestown in 1607. The first militia regiments were organized by the General Court of the Massachusetts Bay Colony in 1636, and from the Pequot War in 1637 until the present day, the Army National Guard has participated in every war or conflict the US has fought.
The Militia Act of 1792
Providing for the authority of the President to call out the Militia, and providing federal standards for the organization of the Militia.
For the 111 years that the Militia Act of 1792 remained in effect, it defined the position of the militia in relation to the federal government. The War of 1812 tested this uniquely American defense establishment. To fight the War of 1812, the republic formed a small regular military and trained it to protect the frontiers and coastlines. Although it performed poorly in the offensive against Canada, the small force of regulars backed by a well-armed militia, accomplished its defensive mission well. Generals like Andrew Jackson proved that, just as they had in the Revolution, regulars and militia could be effective when employed as a team.
The United States National Guard is authorized by the Constitution of the United States. As originally drafted, the Constitution recognized the existing state Militias, and gave them vital roles to fill: “to execute the Laws of the Union, suppress Insurrections and repel Invasion.” (Article I, Section 8, Clause 15). The Constitution distinguished “Militia(s)”, which were state entities, from “Troops”, which were unlawful for states to maintain under normal circumstances. (Article I, Section 10, Clause 3).
Though originally state entities, the Constitutional “Militia of the Several States” were not entirely independent, however, because they could be federalized. According to Article I, Section 8; Clause 14, the United States Congress is given the power to pass laws for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Congress is also empowered to come up with the guidelines “for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress” (clause 16). The President of the United States is the commander-in-chief of the state militias “when called into the actual Service of the United States”. (Article II, Section 2).
The traditional state militias were redefined and recreated as the “organized militia” – the National Guard, via the Militia Act of 1903. They were now subject to an increasing amount of federal control, including having arms and accouterments supplied by the central government, federal funding, and numerous closer ties to the Regular Army.
Several sources copied and pasted.
No, the National Guard is most certainly NOT “exactly” a popular militia.
Militias consisted of all able-bodied male citizens, and were typically organized and run by local (or perhaps county) leadership, elected or appointed by the local government. The were armed with the weaponry commonly available to individual farmers, who were commonly required to purchase and supply their own armament, which they took home with them and used for their own personal use, as well as for militia drills once in a while.
None of these traits apply to the modern National Guard.
It was when the amendment was written. Things changed along the way. But I already wrote that in my previous post.
First of all, we’re not talking about lineage. We’re talking about the 2nd Amendment. The purpose of the amendment was to obviate the need for and prevent the existence of a standing army. We’ve had a standing army since 1812.
Second, as far as I know, members of the National Guard do not own all the weapons they are trained to use. They belong to the government (state or federal).
I don’t know quite what you are arguing. But the existence of the Nation Guard and Reserves does not justify the individual right to bear arms.
What justifies the individual right to bear arms is the plain language of the 2nd Amendment. No law can be passed that infringes on the right to bear arms,
But, of course, the most potent weapon that existed back then was a cannon. Now that we have weapons that can kill or wound 70 people in 70 seconds, and weapons that can blow up the world, I think we all recognize that there has to be some limit on the kind of arms people are entitled to bear.
I should have written ‘was’ as in, No, it was exactly that.
As far as owning, not now, but…
On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:
[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
I was trying to put the second amendment into the context of the time it was written. Not to confuse the issue. You are exactly right, there has to be some limit on the kind of arms people are entitled to bear. To try to apply what was written some two hundred years ago now without the ability to see the difference is a little unreasonable. The framers knew that and built that flexibility into what they created. They changed it as necessary, they expected us to do the same.
the Founders had too much faith in the ability of farmer-soldiers to keep an equal footing with standing armies
I dunno, its worked for Switzerland.
Seriously, I appreciate the differences. But the reason the US kept a small standing army around after 1815 was not so much the threat of war against the existing states but instead the desire for westward expansion. Militias could have been a decent protection for the handful of States at that time but were useless for “securing” the territories of the Louisiana Purchase and beyond.
Even then the US army had always been a small unit in the periods between wars until post-WW2, and thus the danger that the standing army presented to liberty was limited to violence against labor unions and the like.
Post-WW2 has been a whole different story. The Cold War provided the justification for the creation of the military-industrial complex and the rest is history. Now every fear of the founders regarding the dangers of standing armies has been realized – plus some they didn’t think about. It’s just that we’re so used to living in this culture we don’t realize it.
Militias could have been a decent protection for the handful of States at that time
When that theory was tested in 1812, it didn’t work out so well.
XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power. – Article XIII, Virginia Declaration of Rights.
One cannot hope to interpret the 2nd amendment (or indeed most of the Bill of Rights) without reading and understanding the Virginia Declaration of Rights, adopted on June 12, 1776. The context of the Bill of Rights was the assumption that every individual State would have adopted something like the Virginia declaration.
Once you read the Virginia Declaration this fact is obvious. And yet, somehow, the Virginia Declaration is largely forgotten. Supreme Court rulings make no mention of it – even from the so-called “originalists”. Civics courses brush over it quickly if it is mentioned at all.
The reason this document is now largely ignored quickly becomes obvious when one reads it.
http://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights
Considerable research has been done on the intentions behind the Bill of Rights as a whole and the 2nd Amendment in particular, mirrored in the constitutions of several other states at the time and since.
The generally accepted conclusion has been that protection of an individual right was intended and that the reasons it was thought necessary to protect that right were three: the need for self-defense in a frontier society, the need to hunt for food, and a popular – not an upper class – concern to enable resistance to tyranny at a time when the American synonyms for “tyranny” were “monarchy” and “aristocracy” rather than “socialism” or “Marxism.”
Madison and the men of Philadelphia had not included a Bill of Rights in the Constitution and he thought it both unwise and unnecessary to do so.
But, under pressure from many others including Jefferson, Madison drafted a list of amendments the then congress boiled down to the familiar ten.
When he did so he included in what became the second as a reason for its importance an allusion to the republican notion of the time that “a well-regulated militia” – as opposed to such a dangerous tool of tyranny, again meaning monarchy and aristocracy, as a standing army – is the “best security for a free state.”
At the time, a militia was just a somewhat drilled, trained, armed, and disciplined body of ordinary people.
Just the kind of thing the people could, it was felt, spontaneously organize among themselves to resist threatened impositions of monarchy or aristocracy if they owned their own weapons, though such spontaneously self-organized rebellion did not do well against George Washington’s troops during the Whiskey Rebellion.
All the same, that political reason was not the only reason for writing directly into the Constitution a guarantee of the individual right to keep and bear arms.
Something like the above understanding first became the conservative theory of the 2nd Amendment some decades ago.
It was accepted as early as 2008 by Barack Obama and has since through decisions of the Supremes been incorporated in the reigning jurisprudence of the land.
It is worth emphasizing, I think, that the tyranny this right was intended to enable the people to resist was embodied in monarchy and aristocracy, the then nearly universal forms of tyranny that America had just thrown off and that Ben Franklin alluded to in his famous statement of what sort of government the Constitution set up, “A republic, if you can keep it.”
And these forms of tyranny, of course, were emphatically defended by that modern conservative hero and vigorous enemy of republicanism and revolution, Edmund Burke, in his “Reflections on the Revolution in France,” a book of such infamous and black reaction that had it been written in America during our own revolution it would have been the deepest treason and well worth a hanging.
And it is also worth noting that the threat of a monarchist counterrevolution is past while nowadays having too many weapons in the wrong hands has become a major threat to public safety and itself dangerously subversive of our republican and constitutional government owing to the rise and spread of right wing political violence and intimidation.
And last, it is also worth noting, I suppose, that hunting is no longer one of life’s necessities for the majority of Americans and that any legitimate concerns for self-defense are addressed by small capacity pistols and shotguns.
So it’s time to repeal the 2nd Amendment.
Don’t you think?
Sorry, I should have included that it was felt when the Bill of Rights was adopted that the militia could defend the states and the Union against attack and invasion by another country while an army was organized and that this was preferable to reliance on a standing army because the latter could easily be used against the people and their liberties by the great and the powerful while the former could not and could even enable the people to deter, if not overcome, such attempts.
Of course, Washington’s easy success against the Whiskey Rebellion made mincemeat of that idea, too.
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"But I will not let myself be reduced to silence."The paramilitary militia movement in this country already has a well-articulated ideology based on the second amendment. For them, the federal government is a form of tyranny, therefore there is a present and constant need to defend themselves. Given the huge power of the federal government, there can be no limits set on the individual right to bear arms, especially when it is the federal government that would be imposing the limits. The premise is insane and tautological, but the legal argument has been developed over a long period of time and is rational in form if not in content. No effort to reform or repeal the second amendment can avoid the effort to refute this ideological interpretation point for point.
http://en.wikipedia.org/wiki/Militia_movement
(scroll down to ideology)
I equate the first section of the 2nd Amendment to the discussion of the social and political benefits of having free political debate. As the Bill of Rights was being debated, there was a great deal of discussion of why it was good to allow free speech, and not just from the Rights of Man point of view. Allowing the citizenry to discuss politics, it was said, promoted better decision-making in a democratic society, and helped to hold government officials accountable, and made the government more responsive to the people. In other words, there were all of these collective, societal benefits to free speech.
But the manner in which these societal benefits were to be achieved was through the protection of an individual right, not a collective one.
Talking about guns in the context of the 2nd Amendment is a disaster.
That’s a really good point in itself. Unlike the 1st Amendment, the 2nd doesn’t say that Congress shall make no law respecting the keeping and bearing of arms. Of course the gun nuts want us to interpret it that way, but the expression “well regulated” does rather suggest the opposite. Especially since Article I gives Congress the power to “provide for organizing, arming, and disciplining, the Militia.”
Indeed, the Heller SCOTUS decision that the gun-rights enthusiasts point to explicitly endorses the rights of governments to pass laws regulated gun usage and ownership.
The decision upheld the legitimacy of “”…longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.“
This debate is going to ensue until the end of time or until we self destruct.