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Saturday, January 20, 2007

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.

The second amendment is one of the most misconstrued and misunderstood of the first ten amendments to the US Constitution that make up the Bill of Rights. As years have gone by, the horrors of misused guns and deaths by readily available firearms has prompted many to reinterpret this amendment into different meanings than the original intent of its writer and the other founding fathers.

Little JohnGuns are by definition lethal weapons, they are instruments to kill, engineered to make the death of another creature as quick, easy, and reliable as possible. From their first use centuries ago to the most modern experimental weapons, this has always been the purpose of any firearm. All weapons are meant for violence, from Little John's trusty quarterstaff and David's sling and five smooth stones to an ICBM. Some weapons have been symbols of nobility and justice, such as Excalibur, but it still is a sword and still intended for violent use.

Any discussion of the 2nd Amendment must first start with this understanding: arms are used for violence and killing, that's their primary purpose. You can technically drive nails with a Glock G31 pistol, but that is not what it is designed for. Thus, the fact that guns are deadly or that people die from firearms is not the primary concern - obviously they are deadly, the founding fathers were not under the misconception these weapons were used primarily for target shooting or hammering nails.

HISTORY

If anything, the founding fathers of the United States were more familiar with the use of weapons and their devastation than we are today. Many of them were soldiers, all of them were familiar with Indian wars and the various conflicts the British army were involved in. Almost all of them were hunters, using a rifle to collect food for their table. To be a gentleman in the 18th century required familiarity with a sword, even fighting duels with the blade, and all these men were considered gentlemen. For the man of the mid 1700's, death, using weaponry, and killing were familiar concepts. They lived in a more violent time than we, and the violence they faced was more immediate and close to home.

The 13 Colonies, due to the ready resources and excellent quality wood was something of an armory for the British; making rifles and sending high-quality timber to England's famous docks for shipbuilding. However, in general, the public did not have a tremendous amount of weaponry at their disposal. Part of the problem was that engineering was not nearly as fine as today, so that making a gun was a hand-crafted effort, and the metal was not of as high quality. A well-made gun was quite expensive, roughly two months average wages for a laborer. As a result most people in cities were not gun owners, relying on the market for food as most do today.

At the beginning of the Revolutionary War, George Washington lamented this lack of firearms and familiarity with guns (the militias were according to historians quite lamentable and had little impact on most battles). By the end of the Revolutionary War, the Continental Army was doing rather well, and the British Army was mostly isolated and supplies were difficult to obtain. It was in this context that the US Constitution was drafted, and the 2nd amendment was written.

Consider the situation: last time the newly formed United States needed an army, they faced a distinct lack of familiarity with weapons and ownership of them for many of their citizens. Thus, to form and field an army, the government faced the task of supplying and training in the use of guns. Due to the quality and design of weapons at the time, training was a more difficult task than with today's precision calibrated and keenly accurate rifles. Lacking mass production and today's machinery to make guns, coming up with a stockpile to arm the military was daunting.

To face this problem, the founding fathers combined their impressive minds and experiences to work out a useful legal basis for the use and ownership of weapons in the United States. The concept of owning weapons for self defense was not new to the United States. In the 1689 English Bill of Rights, we find this line (note the anti-Roman Catholic bias):
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law
As it turns out, this was defined by law to exclude most weapons other than daggers or clubs, but the concept was there: a recognition of the need for residents of a country to have and be familiar with the use of weapons for self defense. William Blackstone in his commentaries on English Law noted that of the primary rights that all people have, self defense is included (after the king's power being limited by justice and the parliament):
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, and such as are allowed by law. Which is also declared by the same statute [statue reference] and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
When the founding fathers met to finalize the Constitution, five states offered up suggested amendments which were later adopted and formalized by James Madison in the Bill of Rights. New Hampshire suggested that citizens ought not be disarmed unless they have been in rebellion against the government. Virginia had an extensive and clear statement:
That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.
New York similarly went into detail to explain the idea behind the right to maintain weaponry, as well as limitations on the military and martial law:
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
WHAT IT MEANS

Now we come to the awkward wording of the 2nd amendment: it is a pair of seemingly unrelated clauses, written like a grammar teacher's nightmare. As it turns out, this is not all that unusual or unique at the time, as I'll point out later. Originally, when presented to Congress for debate and ratification, the amendment had this wording:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
I mention this for more than historical completeness, it helps comprehend what the idea and purpose of the amendment originally was (and, interestingly enough, includes conscientious objection to military service). There are three concepts clearly laid out here:
  1. That citizens have a basic right to own weapons
  2. That citizens have a basic right to use weapons
  3. That these rights help ensure the security of the nation
Glock 31The first is pretty easy to understand and read. Citizens of the United States have a right, an inalienable and God-given right to own weapons, their use is not described but in the context of previous writing on rights and arms, is assumed: for self defense and hunting. The first is self evident in previous writing, the second is reasonable because that was the primary and common use of weapons for most citizens. Citizens of the United States have this right protected, but it is presumed for all people in all places to have the right of self defense and the means to do so, because rights properly understood are not defined by national borders.

The second portion is important because it solidifies the first. If you can own weapons but may not use them, then the entire exercise is pointless and fraudulent. The second amendment does not guarantee the right of citizens to turn their home into a museum of firearms. It protects their right to use the weapons they own in a responsible manner. How critical this is can be seen in efforts of activist groups such as the Brady Campaign to Prevent Gun Violence. It cannot be argued that the 2nd amendment refers exclusively to military and state-controlled militias if all citizens have an innate right to own and use firearms. Merely possessing a weapon but being able to only use this weapon in an army does not fit the right as defined by the founding fathers. More on this in a moment.

The third section explains why these first two rights are important for a nation to protect. Some rights, such as life are fairly obvious, a government must protect the lives of the governed or it has no reason or right to exist. Others are less clear, and the founding fathers saw fit to explain in this case. Remember the historical context, above, where the militias were not especially skilled or capable, especially city dwellers. Lacking firearms and familiarity with their proper use brought this about in many cases. For a country to be safe, it must have people who are proficient with weaponry and able offer this proficiency in times of danger and outside threat. This proficiency is best learned by owning and using these weapons personally. Thus, it is in the government's best interest for the public to have and use weapons, which is the opposite of the viewpoint of some in government today.

OF MILITIAS AND ARMIES
A well regulated militia, being necessary to the security of a free state
Now we come to the first clause of the amendment. As stated above, this right is understood to be in the best interests of the nation for defense. Where many begin to waver from the original intent of the founding fathers is on the word "militia." The definition of militia, they argue, is the key to understanding the 2nd amendment. The argument goes like this:
Yes, people have the right to bear arms, but they must do so in a militia. The amendment clearly starts with reference to militias, which were citizen armies, not free roaming individuals. This right is only protected within the structure and organization of armies, not specific citizens. The national guard, for example, is a modern militia structure, and any who wish to join may - and in that structure own and learn to use a weapon.
Here's how the Brady Campaign puts it:

When the U.S. Constitution was adopted, each of the states had its own "militia" - a military force comprised of ordinary citizens serving as part-time soldiers. The militia was "well-regulated" in the sense that its members were subject to various requirements such as training, supplying their own firearms, and engaging in military exercises away from home. It was a form of compulsory military service intended to protect the fledgling nation from outside forces and from internal rebellions.

The "militia" was not, as the gun lobby will often claim, simply another word for the populace at large. Indeed, membership in the 18th century militia was generally limited to able-bodied white males between the ages of 18 and 45 - hardly encompassing the entire population of the nation.

The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many of the "anti-Federalists" feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias.

Is this correct? Historically, it is accurate, that is what militias were composed of and what their origin was. State militias were used all the way into the civil war, and were uniformly a disaster (armies comprised of untrained, disorganized, and undisciplined warriors are enthusiastic, but of poor quality).

Here's how two of the founding fathers defined a militia:
"A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms."
-Richard Henry Lee
"I ask, sir, what is the militia? It is the whole people, except for few public officials."
-George Mason
Later, the United States government codified this into law:
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
National GuardState militias are not in use any more, but the National Guard has taken their place, a more organized and reliable alternative. Serving in the National Guard, while scoffed at by some, is actually an honored and traditional historic foundation for this nation. Even if it is in Texas.

However, the 2nd amendment does not actually restrict ownership and use of weapons exclusively to militias, which is where the problems start with this attempt at interpretation. Eugene Volokh's testimony to Congress on this topic is useful to start with:
The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. 1 These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right.
Now above I noted the very odd way the amendment is worded, with two clauses in a disjointed and awkward manner. This was actually not unique at the time. For example, as Mr Volokh goes on to point out, the 1842 Rhode Island constitution protects freedom of the speech in this way:
The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved
The structure is written this way for a reason: the first clause sets up the desired end, the second expresses the manner in which this is ensured. Another way to put it is that the first clause justifies a right, the second secures it. Thus, the right is the free ownership and use of arms, the justification is the defense of a free state. This is the only way to make sense of the wording of the 2nd amendment; especially in the historical context. The second version of this amendment that the US Congress examined was worded this way, making things a bit more obvious:
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.
And when you think about it reasonably, it makes sense: the militia can only be well-trained and regulated if it has people familiar with and in ownership of weapons. Remember: state militias were originally meant to be called up by the governors in times of emergency and war, they were not standing armies nor were they equipped and outfitted until the emergency actually took place. Until that time, the people had to know what to do with their weapons, which required them to already have them. It's too late when an emergency arises for people to be trained with weapons. Alexander Hamilton put it this way:
"...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..."
-Federalist Papers #29
One last thing about militias should be considered. The body of the United States Constitution has a section on militias in congressional powers:
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions
-Article 1, Section 8
This is the logical place for the text of the 2nd amendment to go, were it exclusively in the context of militias. The Bill of Rights was ratified along with the US Constitution, it was not tacked on later like further amendments. When James Madison offered the original Bill of Rights, it was to be inserted into the constitution, not offered as amendments. Each specific right was intended to be added to various appropriate sections.

However, the 2nd amendment was not put into the section on militias. Why not? Recall that the Bill of Rights was the primary effort of the anti-federalists, who were concerned about the power of the central government. Their worry was that without these specific rights being explicitly codified, they would be ignored or worse denied the people's free exercise. The purpose of the 2nd amendment, like all of the amendments, was to guarantee a specific right, not to regulate the people or limit their rights. In this case: the right to keep and bear arms.

In this historical context, in the light of the situation, and in the light of reason, the conclusion is inevitable: the founding fathers meant for individual citizens to have their own weapons and be able to use them. Or, as one of these men put it:
"The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
-Samuel Adams

WEAPONS AND FREEDOM

Some of the earlier suggested versions of the 2nd amendment specifically mention revolution and rebellion, exempting people's right to bear arms if they have engaged in these activities. That doesn't exist in the final version (nor does the conscientious objector clause, although it later was made into law). That's more significant than simply paring down the amendment for the sake of brevity or clarity.

The founding fathers understood something that it is wise for us to remember today: a government that fears it's people is a cautious, wiser government. They made this point very clear in many writings on the subject, for example:
"When the people fear their government, there is tyranny; when the government fears the people, there is liberty."
-Thomas Jefferson

"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

"...to disarm the people - that was the best and most effectual way to enslave them."
-George Mason

"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

"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
-Patrick Henry

"And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance?
-Thomas Jefferson
The theme is consistent: a people cannot trust a government if they lack weapons, and a government is kept honest by an armed people. Notice also that the first clause mentions a free state, not just any state. This is for a good reason: the founding fathers wanted the government to fear its citizens, and while a government can easily exist and function after disarming the people, it will rapidly cease to be a free state. The purpose of the 2nd amendment is not only self defense, but the defense of liberty in the nation. Disarming the citizens is the first step toward losing that liberty, as many a dictator has demonstrated. Dave Kopel points this out well when he examines atrocities in recent history and horrors we've witnessed in the past.

I'll close with an expert on disarming the citizens and the power this removes from them:
"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."
-Adolph Hitler
YAY I GET A HOWITZER!

TridentSo you can own and use weapons in the United States, the constitution guarantees it and the laws protect this right. Does that mean you can use any weapon at any time and in any setting? Plainly, no. There are many restrictions on the right to bear arms, as on all rights.

I've written much more extensively on this elsewhere, but we all are familiar with how this works. You have the right to free speech, but you may not exercise this to cause harm to others (slander or libel). Similarly, we have the right to keep and bear arms, but certain restrictions apply, as the advertisers say. Over time the ideas of how this right may be freely exercised has changed and been interpreted differently. Individual states and communities - as was the vision of the founding fathers - have their own rules and ideas on what this means. At a federal level, one may not own any major, functional military weapon such as a tank or Trident missile.

To own any functional squad weapon such as a heavy machine gun, you have to be a registered and have a Class III Dealer's License as of the National Firearms Act of 1934. Most states have limitations on the size and kind of a blade that someone may carry (usually about 5"), although full sized blades such as swords are not part of this law, since they are difficult to conceal and not very commonly used although still incredibly deadly.

Some states, such as Oregon, permit citizens to carry a gun concealed on their persons or vehicle, provided they have a license and have undergone training with the use and care of firearms. In most states, you can carry a weapon of any legal kind as long as it is in plain view, like a gunslinger. Few people do other than security guards and police, but in some states the gun rack in a truck is almost ubiquitous to the point of stereotype.

TaserAs a general rule, the less lethal a weapon is, the easier access and fewer laws there are regarding ownership and use. Anyone can carry a baseball bat around, although if not done so peaceably, you can be arrested for disturbing the peace or harassment. Pepper Spray is available for purchase freely in many stores, and stun guns such as a Tazer can be bought in many states with no licensing at all.

The primary thing that needs to be considered when any gun law is proposed is whether or not it violates not only the wording, but the intent of the 2nd amendment of the United States Constitution. The purpose is to have a people ready to defend the United States, to be able to defend themselves, to be able to hunt and provide food, and to be a threat to the government to preserve liberty. If a law infringes on any of these purposes, then the law must be held to very intense scrutiny.

In some cases, a society may require a weapon to be restricted even if it could technically fall under these categories - sawed off shotguns, for instance. These weapons are almost useless for hunting because their shot scatters so rapidly as to be lethal only at short range, but they could in theory be used for self defense and defending the nation from threats inside and out. The sawed-off shotgun is too easy to conceal, however, and at short range is almost impossible to miss with; making it a very deadly weapon that is most useful for murder and not for self defense or most military applications (note: some soldiers will carry such a weapon because it is lighter than a full shotgun and in close places like house to house fighting, there is no better gun).

CONCLUSION

Typically, those who would further restrict gun ownership or take it away entirely are well-meaning and conscientious people. They point to gun violence, criminals using guns, and the terrible tragedy of children playing with a firearm leading to death or injury, and call for greater controls. Events like the murderous rampage of demented students at Columbine High School are considered examples of how greater gun control is needed, or for them to be banned entirely.

I sympathize with these concerns, they are valid and real. The primary problem is that outlawing weapons doesn't stop criminals from using them. The Columbine High School shootings were all done with weapons outlawed to teenagers, automatic weapons that only someone with a Class III dealer's license can obtain. The laws didn't stop the events, because quite obviously someone who is a lawbreaker is not restrained by laws by definition. The concerns are valid, but often gun control is the wrong approach to dealing with them.

In Washington DC, the gun laws are the strictest in the nation... and it is one of the worst places in the country for gun violence. The claim is that this is true because so many other nearby areas have lax gun laws, but since they don't have such violence, it begs the question: what's different in Washington DC that makes these guns being available such a problem?

Part of the problem has to be that when ordinary citizens lack firearms for personal defense and safety, they are utterly at the mercy of those who do not suffer such a lack. Those who ignore gun laws are not likely to be particularly kindly or as law abiding in other areas, such as theft, assault, and murder. If you cannot defend yourself or your family with a firearm, then when confronted with one, you are all but helpless. This increases, rather than decreases, gun crime and violence, even deaths.

Gun TrainingAnother aspect to be considered is that without gun familiarity and ownership, then those who obtain one are less capable and careful with one than they ought to be. Learning how to use something carefully and intelligently is the best way to use it safely, a lesson we understand well with cars. If nobody could get or use cars except in special cases, then someone who grabs a car and drives it around illegally will be rather dangerous and unprepared. Children who grow up around and are familiar with the proper use and care of a weapon are significantly more prudent and safe with the instrument. Education and familiarity can save lives, leading to a better and safer state.

Gun control to a responsible and reasonable level is proper: there's no need for the average citizen to have a howitzer in his back yard. Fun perhaps, but irrational and improper. Yet gun control does not and will not address the actual cause of gun violence and crime, so reducing the amount and type of weapons will not reduce the violence, crime, and deaths. When someone doesn't have a gun, they grab a knife, or a club, or a rock, or use their bare hands. It is what is inside a person that is the problem, not what instruments they manage to obtain. Within us is the root cause of crime, brutality, and cruelty - and without that being addressed, all the laws in the world will amount to nothing.

This is part of the Greatest Document essay series

3 Comments:

Blogger Anna Venger said...

We lived in a rural huntin' community for a number of years. There were no accidental shootings and there was little if any gun violence. People knew they weren't toys and had respect for them.

The people in favor of gun control are rarely rural dwellers. If they were they would understand that police were more than a phone call away for those in more isolated regions and that one's self-defense was in one's own hands, not the officials.

They also fail to look honestly at all the stories that indicate a gun reduced violence or saved lives because there is nothing that evens the score between a small person and a bigger, more violent one.

5:19 AM, January 21, 2007  
Blogger Anna Venger said...

should read "the score MORE between a small person..."

5:21 AM, January 21, 2007  
Anonymous President Friedman said...

The only change I'd make to gun laws would be to make gun owners more legally liable for violence committed by others w/ weopons they own. I've been personally effected by gun violence three times in my life (resulting in one death, one injury, and one close call), and all three times it could have been avoided if a responsible gun owner would have simply kept his guns locked up (or at least not laying loaded on top of the night stand next to the bed). In my opinion, none of these gun owners ever faced proper justice for shirking their responsibilities. While I'm sure they carry a world of pain in their hearts resulting from their neglect (even moreso for the one that resulted in the death of a 16-year-old boy), justice demands more.

I certainly agree with what Anna said about rural people and their proximity to the real consequences of gun control laws. I graduated high school with the guy who is now Chief Of Police in my rural community. Theft occuring outside of the city limits is a real problem here, because criminals know our small police force can only cover so much ground at once. There is a fairly popular home-made billboard you'll see hanging on many dirt road fence posts around here that reads, "We don't call 9-1-1.". My friend told me he's never once been called to write up a theft report on property where one of these signs is hung. I wonder why?

11:27 AM, January 21, 2007  

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