So About The Second Amendment

The general public is having another pointless debate, this one over the Second Amendment.

I call it a “debate” only out of courtesy.  It’s not really a debate; it’s a loud argument and it’s convincing nobody.  It’s just like talking to your idiot brother-in-law over the holiday table;  after a couple of minutes, both sides are too busy shouting to even hear anyone else, much less actually listen to them.  That moment when we drift beyond polite and reasonable discussion is the moment talking stops being productive.

The trouble is, most of the supporting positions on both sides of the argument are wrong, particularly when they’re talking about the meaning of the Second Amendment.  The truth is rooted in history, and that’s available for anyone to learn if they want to.  It’s in books; heck, it’s written in bold ink and blood all across this nation’s history.  It’s a truth that they put up monuments to, and hundreds of thousands of our people have died fighting for it.

And today, people are too busy shouting about how right they are that they can’t be bothered to learn a bit of history, and the ones that shout the loudest tend to be the most militantly ignorant.

To combat this, let’s start with A Little History.

In response to the Boston Tea Party, the British Parliament passed a series of acts designed to establish greater control over Boston in particular and the American Colonies in general.  Known in England as the “Coercive Acts“, in the Colonies they were termed the “Intolerable Acts”, and became a rallying cry for rebellion.  Once the Revolution was over, these and other punitive measures of Parliament inspired several passages in the Constitution and the original ten amendments.

It’s important to consider the context:  The Third Amendment, prohibiting domestic quartering of troops, is a direct response to one of the Coercive Acts, the “Quartering Act”.  So is the Fifth Amendment, which covers our rights to a fair trial.  The First Amendment, protecting free assembly, preventing governmental restriction of religion, and providing for a free press, was not invented out of whole cloth but rather as a reaction to the exile of the Pilgrims and Huguenots, editors being jailed, and the attempted militia and assembly dispersals that had been attempted by Crown governors in the period leading up to Lexington and Concord.  All of the rights thus protected were historic and considered fundamental; each had been deliberately and systematically denied or revoked by Parliament or the Crown’s governors.

Reading from this perspective, it seems thoroughly evident that the Second Amendment was drafted in reaction to the ban (Order in Council, October 19, 1774) of arms exports from Britain to the Colonies, and the subsequent raids on county powder houses and arms stores for which the Crown governors became famous.  (See the Powder Alarm, Lexington and Concord, and the Burning of Falmouth for a few examples.)

Consider the text:

“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.”

The year after the ratification of the Second Amendment, Congress passed a law defining the Militia thus:

“…each 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… shall severally and respectively be enrolled in the militia… 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…”

As described by Blackstone in his 1765 Commentaries,

“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree…”

(Blackstone wrote of the British law; at the time, there was no American law outside the British.  His opinion still holds here, though, as our legal system is based on the British system, and precedent and opinion from that time remains valid unless contradicted by subsequent statute.)

From all of these sources, and in these contexts, it is apparent that the original intent of the Second Amendment was to affirm the essential right of a person to own and use weapons necessary to defend themselves, the peace in general, their land from foreign invasion, and their rights from domestic oppression by a tyrannical government.*  Since this time, most court decisions and all Supreme Court decisions have upheld this reading of the amendment.

So far, so good — at least for those who champion gun rights.  But History Didn’t End In 1791.

Remember:  When the Constitution was ratified, it was a brand new thing.  Nobody had done this sort of thing before, not on any large scale, and not in a modern society.  Democracies had existed in ancient Greece and representative governments of varying degrees had been set up in the Italian and German city-states.  England’s own Parliament was powerful and representative, and speaking generally, its rule wasn’t especially tyrannical (at least at home).

But the sort of government framed in the Constitution was unique, particularly in that the elected representatives were answerable to no monarch but rather directly to the law, the people, and to one another through a series of checks and balances.  More to the point, it had been designed to be a living document, capable of being rewritten on the fly if need be to suit the needs of the country it created and then served.

Shortly after ratification, the Supreme Court, one of the three coequal branches of government under the Constitution, began exercising its role of judicial review (as early as 1796).  This was formally stated in the 1803 Marbury v. Madison decision, wherein the Court determined that an Act of Congress granting it explicit power was itself unconstitutional.  The logic runs thus:  Federal courts are required to (1) enforce provisions of the Constitution as the supreme law of the land, and (b) refuse to enforce anything conflicting with it.  Therefore, the task of interpreting the meaning of any part of the Constitution or of subordinate laws is intrinsic to the operation of the Court in a fundamental way, as codified under Article III Section 2.

All this is to justify the proposition that all laws and meanings have been more or less constantly and consistently in a state of flux by their very design since the Constitution was first ratified.  This flexibility is controlled by tight bounds, also codified, but these for the most part are limited in that they determine who gets to change things rather than what is permissible to change.  And, contrary to the opinion of some radio talk show hosts, Congressional legislative power and judicial review have been actively and routinely practiced on even the most petty issues of partisan politics since the founding of the country.

So What Does This Have To Do With The Second Amendment?  I hear you ask.

The first thing it has to do with is the definition of the Militia, both from a perspective of the Second Amendment and modern military practicality.  Remember the words:  “A well regulated Militia, being necessary to the security of a free State…”

Originally, it was obvious that such people as Washington, Jefferson, and the Adams brothers intended to have no large standing army but instead an armed and organized militia composed of the local population.  It was so evident, in fact, that no mention of it at all was made in the original Constitution, save to state that the President is Commander-In-Chief, and that Congress has the power to regulate militias and armed forces.  This omission was by design rather than accident, a corollary of the Great Compromise and the general discussion leading to it.

But that ideal of an effective American militia died in the 1812 war.  At the Battle of Queenston Heights, on the New York / Canada border, the New York militia declined to cross a river and watched their countrymen get slaughtered on the far side. They made that choice over a legal point that they really didn’t understand. It wasn’t cowardice; it was indiscipline.  Later, at Bladensburg, the American militia system’s failures were dramatically underlined; in the aftermath, the Capitol itself was burned.

Militarily, a militia can’t fight an army and win.  In order for the country to survive, we needed a standing army, and over the next few decades, the militia concept became obsolete.  The government relied on volunteer armies to fight its wars, notably in Mexico and then during the Civil War.  But the new ideal became that of a professional army, and laws and regulations were gradually adapted to this model.  These culminated in the Militia Act of 1903, which defined a “National Guard” as distinct from the original (now “Reserve”) militia (the entire eligible body of potential fighters).  According to the act, these were both regulated under the authority of Congress, as provided under Article I; however, it’s important to note that this Federal versus State authority has never been tested by the Supreme Court (with specific regard to the Tenth Amendment**).

One might think that, with the decline in military and practical importance of the existence of a free militia, so too would the importance of maintaining an armed populace.  And yet, during the entirety of the nineteenth century, there was never a thought that such a course would be at all beneficial.  After all, any army must necessarily be drawn from the whole of the people, and as such having them be armed and familiar with arms would therefore be to the public benefit.

This manner of thought continued as the common one in the body politic until as late as the so-called “gangster” days of the 1920s-30s.  The Tommy Gun (Thompson submachine gun) was seen as the weapon of choice of criminals, and you could purchase one at a local hardware store.  The slaughter in Chicago, especially that killing known as the St. Valentine’s Day massacre, quickly turned public opinion against the weapons themselves, and just a few days before the killing of John Dillinger, the National Firearms Act was passed, restricting ownership and transfer of a large number of weapons with no reasonable purpose apart from crime.

It should be stated that the NFA, strictly speaking, cannot take precedence over the Second Amendment in a legal challenge without context.  Context in these matters, such as legal precedent and the wording and intent of laws, is absolutely everything.  The reason is extremely simple, and as such it’s often overlooked.

Why Are Restrictions Legal?

The Second Amendment in itself gives us no guidelines on which arms are proper to be owned by citizens.  In fact, it quite clearly states that there can be no governmental infringement of the right to keep and bear arms, and those arms by the design of the Founders specifically include military weapons.

It’s often said that the Amendment was written when the rifled flintlock was the acme of military technology, and as such it was never intended to apply to anything modern.  I disagree; the intent was clearly to permit the people to be armed as well as the Federal government if not better, and that any restriction on the citizens should certainly be applied to the police, and almost as certainly to the army.  It would be as though someone wished to restrict the Freedom of the Press from applying to anything that wasn’t printed on paper merely because the television (or internet) hadn’t been invented yet.

But that was the intent of the Founders, and their intent died at Queenston Heights and Bladensburg.  The principle was later fought over again at Antietam, and Ball’s Bluff, at Gettysburg, at Petersburg; by force of arms the Federal government demonstrated that citizens have no legal right to battle one another over the issues of the day.

However, by this time the brilliant minds who designed our system of checks and balances were no longer with us to help regulate our new way of life under a strong central government.  Congress enacts laws but rarely repeals them; judicial review as a practice tends to restrict rights rather than extending them — at least viewed as a trend over time.  The ideological divide thus created between effectiveness and ideology, between individualism and collective power — it’s divided our entire culture ever since, and often violently.  This is the nature of the argument that led to the War of 1812 and the Civil War, and it’s only ever been solved temporarily.

Remember what I said before:  The Constitution was designed to be a living document, capable of being altered or rewritten in order to suit the needs of the nation.  There exists an amendment process for precisely this reason, and the doctrine of judicial review — no modern invention, you’ll recall, but something that’s been exercised continually since 1796 — provides a human eye to judge the appropriateness of any law.

In this instance, the most straightforward approach to gun control, if we should desire it, would be to pass a new amendment limiting the Second.  However, a large percentage of the population has come to view the Second Amendment as sacred and their gun ownership as inviolable.  Legal or illegal, right or wrong — these are no longer valid points in the debate; as long as there’s tens of millions who would resist surrendering firearms, we can’t practicably part people from them without becoming a police state.

In short, the question is not “Do we have a right to our guns?” but rather “How much do we want guns?”  And, since we live in a free society, and since we want guns, we have guns.  When we choose to limit this freedom, we can do so voluntarily — but when only half of us agree to impose limits, they will be inordinately difficult to create and impossible to enforce, much like the present War On Drugs.

But Americans want gun control.  Why don’t we have it?

Every FFL dealer is required to run a background check for every sale.  It runs through NICS and it’s next thing to instant.  Any dealer at a gun show has to do it too; it’s just individuals selling one gun at a time that don’t — up to three per year, as I recall.  (There are aspects to this that we might address, but I’m confident that instituting background checks on private sales isn’t one of them, no matter how heated the rhetoric gets.)

Frankly, we couldn’t enforce a tighter law against anyone bent on crime; recent events in Chicago and the results of the War On Drugs have quite clearly demonstrated that we can’t even enforce our present laws.  All we can do by tightening controls is make it harder for the honest people.  Which might be useful in some respects (such as preventing suicide) but it wouldn’t stop mass shootings; if you really want a gun, you can get one.

What I’m saying here is this:  We have gun control.  It’s tight, as tight as it really needs to be.  What we lack is people control, and that’s a tough thing to manage in a free society.

The Bottom Line

The Americans of the Revolution owned guns individually, in their homes, and collectively, in town armories and powder houses.  They resisted British attempts to confiscate these guns, and when the Crown insisted, the Revolution began.  There were other abuses, to be sure, and those egregious and excessive, but Lexington and Concord was fought over gun control.

Since the Civil War, the Federal government has grown powerful beyond the vision or intent of the Founders.  It’s important to note that this could not have come to pass without the consent of the people, freely given and willingly pursued.  Nevertheless, today, the Constitution is vastly stretched in order to restrain government from impairing the rights of the people.

It remains possible to legally restrict firearms ownership to any degree we as a nation desires.  All we need do is pass an amendment to the Constitution limiting the Second Amendment, and there will be no obstacle other than the practical.  The practice of regulating gun ownership beyond what much of the public deems reasonable, however, will indeed prove a practical obstacle, the prospect of which I for one view with dread.


NOTE:
* There’s a great deal more to this argument, and my reader should be aware that in no way am I herein attempting to be (or to pretend to be) comprehensive.  Simply citing sources would create a document several pages in length, and describing them even briefly would fill a small book.  My intent here is to be brief and accessible, and in this day and age of widespread functional illiteracy, no small book qualifies.

** It seems evident that, under the Tenth and the Militia Act, any state could establish a militia from the designated Reserve as distinct from the militarized National Guard.  It could be armed, equipped, and trained at state expense and under state jurisdiction, and it could serve several purposes:  as a trained reserve cadre, a border patrol, an emergency crime opposition unit, and to deploy in event of national disaster.

The other side of that coin is that any state has the power to restrict firearms use and perhaps ownership as it sees fit without paying much regard to the Second Amendment (McDonald v. Chicago notwithstanding).  The Constitution, after all, is designed primarily to restrict the Federal Government rather than its several states.  There are limits, and the Federal government could act to support them, but these tend to be on the border between reasonable restriction and egregious tyranny.

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