Introduction
This morning on MSNBC there were a number of discussions of the Second Amendment and the meaning of the right to keep and bear arms. I think there is a lot of confusion about this issue. I offer the following interpretation of the Second Amendment that I believe is based on common sense and what the Constitution actually says. I have presented this before in comments on other posts, but I decided to pull those comments together and publish them in a single post.
Second Amendment
"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."
Constitution, Article 1, Section 8, the "Powers of Congress"
" . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide 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."
Summary
In the relevant portions of the Constitution, we have the "militia," a navy, and an army. The purpose of the militia is defined, as are also the powers of Congress.
The Constitution presumes that there would not be a standing army -- that an army would be "raised" when the need arose. Rather than being "raised," the navy is "maintained." I think the assumption here is that the vessels, armaments, and skills required for a navy are things that cannot be "raised," but rather have to be immediately available. In addition, the navy would be called upon to patrol the waters of the nation, fight pirates, and so on, all things that would require a standing navy.
In contrast to the army that is "raised," the militia is "called forth." This implies that the militia is in a state of readiness such that it can be quickly mobilized and deployed. This means that the militia would have to be armed prior to being "called forth."
In that context, the Second Amendment makes perfect sense: "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 concept of the militia in the Second Amendment assumes that people are armed. In other words, the right of the people to keep and bear arms is presumed and recognized by the Second Amendment, not created by the Second Amendment, in the same way that the First Amendment recognizes the right of free speech but does not create it.
This is a matter of simple logic and practicality. If you're going to have a militia that can be called forth and deployed on short notice, it has to be armed, and the only way it can be armed is if the people have arms.
Section 8 also notes that it is within the power of Congress to "provide 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." [emphasis mine]
In the event that the militia has been nationalized and is in the service of the United States (as opposed to being in the service of their home states) only then the Congress is responsible for "arming" the militia. Again, this implies that prior to being mobilized, or while in the service of individual states, the members of the militia are already armed through their own personal ownership of arms.
In my reading of the Second Amendment and Section 8, the arms possessed by the militia would be the arms that one would typically expect to be found in the home. This would obviously exclude canons and warships, but potentially include muskets, gunpowder, bullets, flints, knives, swords, and other personal weapons and related supplies.
The Constitution is very clear about the purpose of the militia: " to execute the Laws of the Union, suppress Insurrections and repel Invasions."
It is clear to me that the Second Amendment presumes the existence of an armed citizenry. The whole concept of the "militia" makes no sense without that. An armed citizenry is what made a militia possible. Having a militia is not the purpose of an armed citizenry, but rather a consequence or benefit of personal ownership of arms.
In other words, even if a militia were no longer needed, that would in no way eliminate the right to keep and bear arms. For example, "freedom of the press" would still exist even if newspapers no longer did and were replaced by other media. The purpose of the militia as envisioned in the Constitution has largely been taken over today by police forces and the National Guard. Nonetheless, the right to keep and bear arms remains.
The arms that citizens have the right to keep and bear are those that typically would be found in the home. These include weapons that would typically be used for self-defense or hunting. It would not include flame throwers, cluster bombs, land mines, machine guns, and so on. I think it would also not include what are typically called "assault rifles." There is no such thing as an "assault rifle," but we're talking about rifles with high-capacity magazines that have primarily a military use. Many gun owners would disagree with me on this, but in my reading of the Constitution the Second Amendment does not include the right to own weapons that are primarily designed for military use.
Some people say that one reason for the right to keep and bear arms and the militia is so that armed citizens could resist tyrranical government. That's a nice theory, but there is absolutely nothing in the Constitution to support that view. The Constitution is very clear that the purpose of the militia was to "execute the Laws of the Union, suppress Insurrections and repel Invasions," and that's it. Let me put it this way: if someone reads the Second Amendment and Article 1 Section 8 of the Constitution, and concludes that individuals -- or States -- should have the capacity to defeat federal armies in battle --I don't know where that comes from.
In conclusion, when we read the Second Amendment in the context of Section 8, looking at the ordinary meaning of the words, I think many of these issues related to the right to keep and bear arms become clear, and we will reject extreme interpretations on either side.
That's how I see it, and as always all the above is "in my humble opinion."
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David Cox
Steve Blevins
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Comments
People who want less gun violence in the cities of America (and it is mostly urban dwellers who enact such laws) then they should consider ending the War on Drugs, or at least advocating it. That would eliminate the funding and the exigency that causes so many young urban men to arm themselves. As for the occasional rural mass murder? Hey, if it doesn't bother the folks that live in that area, then it doesn't bother me.
However, I still hold with you that weapons for personal protection and hunting are appropriate but more sophisticated weapons (read automatic weapons, bazookas, and the aforementioned flame throwers) are not the purview of the ordinary citizen and can legitimately be banned from private ownership.
Thanks for this well put post.
Rated
I also believe Neilpaul may be correct that gun control is a futile exercise, just as other forms of abolition have proven to be. Of course, that does not mean the goal of reducing the prevalence a potentially harmful element, like certain guns or hard drugs, is not a worthy goal. Throwing millions of people in jail, however, is not the most effective way of achieving that goal.
By the way- gun control works fairly well in most asian countries. What doesn't work is LOCAL gun control. National gun control works very well. In asia, the well organized mafias and triads still have guns of course. But the difference is that there are no IDIOTS with guns, as is the case in the US of A. Over there the gangsters don't bring out their guns unless there is a serious need for it. There is no random shooting, no idiots shoting up stret signs, no idiots going postal, no nimrods shooting in road-rage incidents, no students shooting up their schools, etc, etc.
I was raised in rural Pennsylvania where guns were a necessary tool for home defense (police were over ten miles away, down the mountain, and during bad weather the roads were inaccessible. People on our mountain who didn't own guns were foolish), and hunting.
Well done, and thank you.
" In other words, the right of the people to keep and bear arms is presumed and recognized by the Second Amendment, not created by the Second Amendment, in the same way that the First Amendment recognizes the right of free speech but does not create it."
I also agree with your stated position on automatic weapons and their ilk not being protected, and the reasoning you have used to say so.
I agree with many of the things you say, but I disagree here. We live in a country with hundreds of millions of extant guns and no national appetite for banning guns. How in the world can we realize a goal of national gun control? It does not make sense.
Most of the murder rate in Massachusetts is gang related. Gang related equals drug dealing related. It is much more plausible to just end the need of murderous types to have guns and murder.
I would of course join you in bemoaning domestic violence and postal and rageaholic type incidents that would persist, but those incidents are either rare or would be replaced by non-gun murder in any event.
Is this not a more feasible course to take?
Really nice work, Mishima!!
icemilkcoffee writes: "The 2nd amendment needs to be done away with. Too bad it's in the Bill of Rights. It's like a curse the founding fathers have left behind. Firearms have no place in a democratic civil society."
What I wanted to do was to look at what the Second Amendment actually says -- not what I or others might wish that it said, but what it really says, and how it would have been understood around the time that the Constitution was written. In order to do that I think it has to be understood in light of Article 1, Section 8, and typically I don't see that happen.
I personally support the right of people to own firearms, but I also understand the negative consequences of that. As far as I can tell the Second Amendment does in fact support private ownership of firearms.
I think two amendments are most misunderstood in our society, the second and the fourth.
The second is regarded as a licence for dangerous people to carry lethal weapons.
The fourth is regarded as a "get out of jail free card" for lucky criminal defendants whose searches are found to be unjustified.
Properly understood, both these amendments are intended as, and in fact are, provisions that maintain liberty in the face of those who would restrict freedom.
two observations:
the existence of a large professional standing army has obviated the role of the militia as envisioned by the founding fathers, arguably making the 2nd amendment obsolete, in that it's original purpose no longer applies
societal conditions change over time, along with the interpretation and application of laws, for example, we no longer consider non-whites to be equivalent to 3/5ths of a human being, nor do we consider that the fundamental rights and responsibilities of citizenship apply only to the male gender, even though these beliefs were enshrined in constitutional law at the founding, similarly I think it's arguable that the damage to a modern society by allowing unfettered access to deadly weapons is much greater than the damage incurred by reasonable restrictions on gun ownership
Are you for them as a matter of personal preference, or do you see something in the Constitution that provides support for possession of such weapons?
Roy writes: " . . . arguably making the 2nd amendment obsolete, in that its original purpose no longer applies."
One of my points is that the Second Amendment recognizes the right to keep and bear arms, and that this recognition stands on its own regardless of the existence or non-existence of the militia -- in the same way that we would still have freedom of "the press" even if newspapers became obsolete and disappeared.
Roy: ". . . I think it's arguable that the damage to a modern society by allowing unfettered access to deadly weapons is much greater than the damage incurred by reasonable restrictions on gun ownership."
Firearms are already one of the most highly-regulated items in the country. What additional restrictions on gun ownership would you consider reasonable?
"If you're going to have a militia that can be called forth and deployed on short notice, it has to be armed, and the only way it can be armed is if the people have arms."
Exactly. My take is that "armed" in the 21st century involves something more than a random collection of shotguns, .22s, and lever action deer rifles. In Revolutionary War times, the average citizen's firearm was approximately equal to those carried by professional soldiers. Today, assault weapons are standard issue in armies, militias, and paramilitaries worldwide, and it seems as if, if there's to be any point to an armed citizenry which can be called up militia-style, they should have at least approximate parity with potential foes.
given that the country no longer relies on militias for police and national defense, I'd say that military style weapons that have no purpose except rapid and relatively indiscriminate killing should be kept out of the hands of most ordinary citizens, I think we're in agreement that there's a line somewhere between nuclear bombs and slingshots, and I'd place that line just above weapons suitable for hunting and sport
restrictions on carrying concealed loaded weapons in most public places don't seem to me to be an onerous infringement of the right to own and bear arms
and I wouldn't agree that firearms are among the most highly regulated items in the country, cars and trucks are more strictly regulated, so are vitamins and prescription drugs, so are poultry and beef and candy and children's toys
just sayin'
Here's where I would have to agree with Roy. The concept of the militia is now obsolete, made so by armed law enforcement officers, the National Guard, and a standing army.
That said, I doubt that a ban on so-called assault rifles or high-capacity handgun magazines would have any significant impact on crime. On the other hand, it wouldn't have any significant impact on personal safety either.
Sometimes government firearms restrictions have unexpected consequences. For example, during the Clinton administration there was a ban on the sale of high-capacity (more than ten rounds) semi-auto pistol magazines. As far as I know there were only two effects from that ban: first, high-capacity magazines manufactured before the ban went up dramatically in price. Second, manufacturers developed sub-compact handguns that took ten-round magazines. (E.g., the Glock model 26.) With a ten-round magazine limit, manufacturers simply made smaller, more concealable handguns.
Was anyone safer because of that? Was there less crime? Of course not. On the other hand, for self-defense purposes, if a civilian cannot adequately defend himself with ten rounds and one in the chamber, something has gone very wrong. The ban on high-capacity handgun magazines made gun control people happy, but in the final analysis it accomplished nothing either good or evil.
A Second Amendment issue that I find very interesting is the ability of citizens to carry concealed handguns. That opens up a whole different set of issues. Maybe I'll do post on that sometime.
Yes, I agree completely with you philosophically, even though I don't think that such a regulation would have much of an effect in the "real world," as I explain in a previous comment.
Roy: "restrictions on carrying concealed loaded weapons in most public places don't seem to me to be an onerous infringement of the right to own and bear arms"
I have to disagree with you there. I believe that people have a right to defend themselves even (especially) when they are away from home. A handgun is the only device that gives you a ranged defense against an attacker. By "ranged defense" I mean that you can defend yourself at a distance from an attacker or multiple attackers. In the real world most people who defend themselves with handguns never fire a shot; the mere presence of the handgun provides a sufficient deterrence.
"The concept of the militia in the Second Amendment assumes that people are armed. In other words, the right of the people to keep and bear arms is presumed and recognized by the Second Amendment, not created by the Second Amendment, in the same way that the First Amendment recognizes the right of free speech but does not create it.
This is a matter of simple logic and practicality. If you're going to have a militia that can be called forth and deployed on short notice, it has to be armed, and the only way it can be armed is if the people have arms.
Section 8 also notes that it is within the power of Congress to "provide 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." [emphasis mine]
In the event that the militia has been nationalized and is in the service of the United States (as opposed to being in the service of their home states) only then the Congress is responsible for "arming" the militia. Again, this implies that prior to being mobilized, or while in the service of individual states, the members of the militia are already armed through their own personal ownership of arms."
Yet in the comment above, you say:
"The concept of the militia is now obsolete, made so by armed law enforcement officers, the National Guard, and a standing army."
Did I miss something?
I'm referring specifically to "concealed loaded weapons" in the caveat you quote, emphasis on "concealed". If "the mere presence of the handgun provides a sufficient deterrence", as you say, then concealing it would seem to defeat the purpose of having it in the first place, I don't understand the motivation for carrying a concealed weapon as a deterrent, concealment of a weapon that you have the legal right to carry only makes sense if you're also trying to conceal your intent, and what legal use of that weapon would an honest person intend to conceal?
The assault rifle discussion is obviously a finer point and my bias would tend to go to the law-abiding citizen's right rather than the government's.
Rated.
(Link via the guns subreddit which I recommend everyone take a scroll down to see how many times guns in the hands of law abiding citizens save lives everyday.)
The same is true of concealed carry. If criminals get the idea that it's even a bit likely their intended victims are armed, they will change tactics. They will almost always have the element of surprise, and could just pop you between the eyes rather than risk an armed response. So, too many guns can be as dangerous as not being allowed to carry a weapon.
The nice thing about the Constitution is that it doesn't disallow reason.
There are many more court decisions to come.