Tuesday, October 6, 2015

The Second Amendment: what it actually says and means

Every time there is a large-scale, gun-related tragedy, there is a debate about the Second Amendment. Some cling to it as a defense, in the face of people who seemingly want to get rid of all guns. Others cite it as a bit of antiquated Americana that needs to be done away with. Still others argue that it doesn't really give people a right to own guns, that it is being misinterpreted completely. Setting aside the first two issues for now, let's dig in to the third. First, this is the Second Amendment to the Constitution of the United States:
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.
Short and sweet, that's it. There isn't any more. The last part is clear: "the right of the people to keep and bear arms, shall not be infringed." Remember, this is a part of the Bill of Rights, the Amendments demanded by various people during the Ratification Debates and agreed to by James Madison, as a means of securing their support for the Constitution, proper. The desired Amendments were about protecting the citizenry from government; they were intended to absolutely secure certain rights that some feared were in danger because they [the rights] were not mentioned in the Constitution.

And the people of most States were very much used to the idea of a Bill of Rights, as many States had incorporated the same in their own constitutions, prior to the creation of the U.S. Constitution. Not all of them addressed the right to keep and bear arms, but a number did. Regardless, the point is that these Bills of Rights—both at the State and Federal level—were understood to be securing freedoms that were a given, that were natural for all intents and purposes. The colonists were not looking for new freedoms, for government to give them more liberty, they were looking for assurances that the government would not take away the liberties that they already and rightly enjoyed.

It is important to understand this backstory as a means of processing the Second Amendment. Again, the second part of the Amendment is crystal clear. It it the first part, that of "a well regulated militia, being necessary to the security of a free state" which continues to trip people up, to confuse them. It has lead to two different views of the Second. One is that the Second confers an individual right on the citizenry at large, and that the militia clause is ultimately inconsequential. The other is that the Second establishes a collective right, wherein the citizenry only has this right with respect to the idea of a "well regulated militia," thus the state—at every level—can restrict individual ownership of firearms.

Interestingly, both interpretation have received support from professional historians and scholars of law. I say "interestingly" because it is somewhat ridiculous that any serious historian or scholar might argue for the Second being about a collective right. And I'm going to explain exactly why that is.

First, as I noted above, if the Bill of Rights is understood as a response to concerns over the Constitution—which is exactly what it was—then it's about individual rights as a matter of course. Any cursory reading of the Ratification Debates will bear this out, as people like Patrick Henry railed against Madison and his Constitution specifically because it contained no provision to protect the right of citizens to remain armed. Madison, for his part, did not believe there was a need for enumerated rights, insofar as he argued that the Constitution was a limiting document and because it did not expressly give the Federal Government authority to disarm the populace, the Federal Government could never do so. Still, he ultimately penned the Second to pacify people like Henry and secure the right to bear arms as an individual right.

Next, the idea of "militia," as given by many collectivists is simply wrong. They argue that the militia is akin to the National Guard, that it is a defined and limited body and not the citizenry as a whole. But Madison's own words demonstrate exactly what he means by "militia," exactly what people of that time understood the word to reference (philosophically, he's drawing on the ideas of Machiavelli in The Discourses). From "Federalist #46," penned by James Madison in 1788 (my boldface):
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
Madison is explaining why the Constitution will not lead to the creation of a Federal Government that might engage in a tyrannical pursuit of power of the various State governments (yes, that was a very real fear at the time). In so doing, he posits how large a force the Federal Government might be able to assemble and then notes how it would be countered by the militia, a force of half a million. In 1788, the population of the Colonies was around four million. Taking out the slave population, women, the elderly, and children, half a million is pretty much what one might expect as the total for all able-bodied adult men. In other words, for Madison the militia was the citizenry. And there is no reason to suppose others in this period had a different understanding.

From here, the collectivist argument proceeds to the whole phrase, the "well regulated militia." Their argument is that the "well regulated" part serves to limit the "militia" part as a matter of course, that even if "militia" refers to the citizenry at large, it can only be called "well regulated" if it is limited, if it is a militia that meets and trains periodically, etc. And there is no such militia anymore, by and large, thus there is no need for individual ownership of firearms. The government is thus free to regulate such ownership in any way it desires.

But the problem with this argument is the understanding of "well regulated" that is being applied. What does it mean in context with the rest of the Second? Understand that the militia is the citizenry, with or without arms. And true enough, the existence of a militia—a body of freeman—is a precondition of a free state. But it is not enough to secure a free state. What is needed is a well regulated militia to secure a free state. And the requirements for a militia to be well regulated? Well, the principle one is in the Amendment: it must be an armed militia, otherwise it provides no security for the state. In other words, meeting the  requirement of "well regulated" is achieved by guaranteeing the right of people to keep and bear arms! Read the Second again with this understanding, and see if it does not suddenly make perfect sense, as written:
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.
Thus, the arguments for the Second securing a collective right are all wrong. As written, the Second absolutely secures an individual right, albeit one intended to serve the common good. This last is most certainly true: the individual right to keep and bear arms means a well regulated militia (in the mind of Madison and his cohorts), and a well regulated militia means a free and secure state.

Now, what does this mean in daily life? How does the actual meaning of the Second translate to gun laws and gun ownership? The Second is not about hunting, nor is it about personal defense against criminals or the like. But the consequences of a right to keep and bear arms are not unlike the consequences of a right to free speech: there is a core necessity being served which opens the door for ancillary uses of the right, along with some abuses.

The ideal of the Second is simple: the citizenry is to remain armed. And the idea behind the ideal is that firearms remain in the possession of citizens, where they might be accessed if they were ever needed in service to the militia. Thus, the theoretical citizen might keep his or her guns in a locked trunk in the attic or basement, secure in their knowledge that they were there, should they ever be needed. The Second is not intended as a basis for citizens to keep a gun under their bed or in the nightstand, should an intruder break into their home. But nonetheless, such a scenario lies within the scope of the Second; it is a potential consequence of it and there is nothing to be done for it.

Beyond that, the issue of hunting is its own thing, a fact that too few on both sides of this debate seem to realize. It extends back to pre-colonial days, to the English Game Laws of the eighteenth century, and revolves around the issue of self-provisioning. There is absolutely nothing in the Constitution or the Bill of Rights that suggests the Federal Government has any authority on this matter; it is wholly a matter for the States, themselves. But I digress...

Anyway, given what the Second actually means and says, and what the foreseeable consequences are for its existence, when it comes to gun ownership, it is fair to ask what avenues are available—if any—for States or the Federal Government to limit or otherwise regulate the right. Once again, the other rights in the Bill of Rights provide the answers. Despite these rights often being viewed as absolute and/or natural ones, there are plenty of limitations to all of them, this we know. So to for the Second.

Neither the ideas of concealed nor open carry are protected by the Second Amendment. Despite Thomas Jefferson's penchant for carrying his gun with him everywhere he went, such a thing is not a Constitutional right. And as far as I am concerned, getting rid of both kinds of permits would be a smart move. Neither serves the people as a whole, neither is necessary for a secure and free state, neither makes anyone better off.

Rules mandating how weapons are stored, this is also allowable within the context of the Second, as long as the individual remains in total control of the firearms (i.e. storage cannot be mandated to be at some sort of common location, government or private). But gun locks and safes, these are not only good ideas but also ones that can be required. And in that regard limitations on ownership to some degree are also not out of bounds, nor is licensing in general.

And it is important to remember that the Second does not define "arms." But the sense of the term is clearly as weapons of war, of self defense, Technically, a crossbow is an "arm" in this regard, as is a slingshot. But we know such arms would be practically useless now, as a means of securing a free state. Thus, I think "arms" should be understood on that basis, primarily. And if you happen to be reading this, thinking that I'm making a lot of strong pro-gun arguments, let me end this piece with an argument that many pro-gun types might not like.

Since the point is the security of a free state, the preferred weapons should be ones that actually can impact such an end. Frankly, that means rifles (including assault-style ones) and shotguns (including automatics). Handguns? Not so much. Outlawing the latter while allowing the former two would sit perfectly well with me and would not be a violation of the Second. Because, in the words of Lynyrd Skynyrd:
Hand guns are made for killin'
They ain't no good for nothin' else...

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