The Second Amendment

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Anyone who wants to understand the first ten amendments to the Constitution (which was adopted in 1789) should first read the Constitution, itself:  after all, the amendments were written to fill in gaps or clarify the meaning of the Constitution’s Articles.  If we are interested in the Second Amendment, we must first look at Article I, Section 8, for this spells out the powers granted to Congress, including the power “To raise and support Armies”; “To provide and maintain a Navy”; and “To provide for calling forth the Militia, to execute the laws of the Union, suppress Insurrections, and repel Invasions.”  It goes on to give Congress the power to organize and arm the militias and to govern them when they are employed in the service of the US government.  To the states is given the power to appoint the officers and conduct training, but that must be according to the discipline specified by Congress.  In Article II, Section 2, the President is designated as the Commander in Chief of the Army and Navy, and also “of the Militia of the Several States, when called into the actual service of the United States.”

 

This makes it clear that the Militia is an early form of the National Guard, and in fact, the fifth Militia Act (1903), specifically converted the Militia into the National Guard as we know it.  Congress passed the first Militia Act in 1792.  Among other things, it authorized the President to call up the militias “whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any State . . . .”  A second Militia Act—also passed in 1792—spelled out the States’ role:  All “free able-bodied white male citizens” between 18 and 45 were regarded as a part of the militia, and they were required to have a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.  Those owning rifles were required to have a powder horn, ¼ pound of gunpowder, twenty rifle balls, a shooting patch, and a knapsack.

This is the reason for the Second Amendment (1791), which says:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, should not be infringed.”  And this could be paraphrased:  the people have a sacrosanct right to keep and bear arms because a well-regulated militia is necessary to the security of a free State.  (“State,” here, surely means government in general.)

 

It is clear that the Second Amendment and the Militia Acts do not recognize as a militia any group that simply appropriates the name  and arms itself.  It is also clear that this does not state a universal right of the people to own guns, per se.  If that were intended, the first thirteen words would be completely unnecessary.  And it is striking that the second amendment is the only one that begins with a purpose explaining why it has been made!  Without this purpose there would have been no reason for the Constitution to have either supported or denied gun ownership.

 

It is also important to note that the Name, “Bill of Rights,” was added later by analogy with the British “Bill of Rights” of 1689.  In fact, twelve articles of amendment were approved and sent to the States to be ratified.  Articles Three to Twelve were approved and became the first ten amendments.  (Article Two of those submitted actually became the twenty seventh amendment in 1992, and Article One is still pending.)  None of the other amendments are fundamental in the same sense as the “rights” we see in Amendment 1:  freedom of religion, speech, the press, and assembly.  Instead, they deal with such things as the requirement of probable cause for warrants, double jeopardy, not quartering soldiers in houses during times of peace, etc.  Further, Amendment Nine says that the enumeration of various rights doesn’t “deny or disparage” other rights retained by the people.  And Amendment Ten says that rights neither delegated to the United States by the Constitution, nor prohibited to the States, are retained by the States, or the people.  As this shows, the notion of rights in the Constitution is very broad (and it has nothing to do with the “natural” rights mentioned in the Declaration:  life, liberty, and the pursuit of happiness).  Gun ownership isn’t in any sense a “God-given” right.

 

So, how did the Supreme Court come to make such a bad decision?  (It isn’t the first time.  Consider Citizens United vs. FEC and McCutcheon vs. FEC.)  Essentially, the conservative majority disregarded the first thirteen words—the unique statement of purpose—and based the decision on the remaining words.  Scalia was the leader in this, and the terrible irony is that he called himself an “originalist,” someone who tried to adhere to the precise meaning that the writers of the Constitution and its amendments had in mind.

 

A good decision would have been to recognize that without the requirements of a militia, no amendment related to guns would have been called for or written.  The ninth amendment recognized (implicitly) that a right to bear arms is consistent with all of the other “rights,” not superseded by the Constitution.  As the country has grown, many of those unstated “rights” have been over-ruled by the necessary local laws that are implicit in such things as zoning.  It is clear that the private possession of great numbers of machine guns and other military-style weapons raises potential threats to the well-being of our country, and we do need limits on the possession of guns beyond the basic requirements of hunting and defense of one’s home.