The Price Of Freedom (Part 2)

In the last article, the statement was made that “it’s because of the First Amendment that the Second can be discussed”. The price of freedom is freedom; the ability to discuss a topic makes it inevitable that such topic will be brought up. As such, it well behooves us to be prepared for that conversation when it comes, whether on a personal or a national level.

In point of fact the text of the Second Amendment contains within it not just the intimation but rather the express statement that gun regulation not only can but should exist. It’s unique among the Amendments in this respect, likely at least in part due to Hamilton’s stated objection that a listing of rights implies that the power exists to restrict them. But it does indeed contain both permission and direction for that regulation. The text reads,

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.

First, let us discuss the extent of the Amendment and its clear purpose, after which we can readily see the two intrinsic limitations. “Militia”, at the time meaning the body of the populace when mobilized to deal with community emergencies, clearly indicates that all able citizens should be included; “Arms” likewise clearly referred to weapons of war as well as their ammunition. Similarly, “to keep and bear” includes not merely in safes at home but openly, in hand or holster; “shall not be infringed” permits no diminution. So much is clear, and even beyond debate; in order to remove this, a new Amendment would need to be put into effect — and any act to thus amend rights considered fundamental by a people just emerged from bloody revolution must not be taken lightly.

However — and this is vital for proper understanding — the word “infringed” clearly implies that the right to keep and bear arms already has boundaries and limits, which by the principles already discussed must include the rights of others. My right to bear arms should never limit the right of someone else to live, or to pursue happiness. If society can determine that I am a danger to others (and, arguably, myself — though that’s a debate all its own), it already has the right to prevent me from being armed. Defining that further in no wise infringes on rights already expressed. The best example here is to observe that prisoners in jails are not commonly armed, and that nobody in 1789 seriously believed it should be otherwise.

We’ve focused thus far on only the second half of the Amendment in question; there are two more clauses to explore, and each has its purpose: the first explains how and why regulations can be permitted, the second where and why they should be limited.

“A well regulated Militia” explicitly states that the Militia is to be regulated. Elsewhere in the Constitution, Congress is empowered to provide for this regulation. These clauses were used a century ago to create the modern version of the National Guard, a standing body that serves as a trained citizen’s army to serve in time of emergency. State and local governments have used it to create not only armed police departments but also fire and ambulance services, likewise trained and empowered to do what’s necessary to perform their duties. Customarily, firemen trespass on private property; they break windows and doors and they knock holes in walls, because those actions are expressly permitted to those who serve public safety.

What Congress has thus far failed to do is well-regulate the rest of the Militia — those citizens who are not in law enforcement or the military. It clearly has the power, even the responsibility, but thus far it has limited its actions to restricting ownership of certain types of weapon. Thus, whereas in 1776 a private citizen could fit out a privateer (complete with cannon) to wage war, the same is no longer permitted today. Similarly, we generally prohibit people from keeping bazookas, tanks, and machine guns lying casually about the house.

One thing Congress could certainly do to promote gun safety is mandate training programs for those who wish to purchase guns and/or ammunition. This is not merely supported in precedent; it’s a traditional requirement that lapsed sometime after the Civil War. In Massachusetts, I understand there’s a “blue law” still on the books that requires all citizens to not only attend church once a month, but to there present a gun and twenty rounds of ammunition for public inspection. With this extant, no reasonable argument could be long sustained even by the gun lobby against such a modern requirement.

(Those who argue for mandatory gun ownership must also contend with similar long-standing objectors; the Quakers were religiously pacifists, and their right to avoid military service was respected at the time. Philosophical or religious objections to bearing arms must be similarly honored today. -Editor)

Another action within the implied Congressional mandate is the determination of competence; rejecting volunteers or proposed officers is a similar part of military regulation that existed without argument at the time. Militia regulation in this sense already empowers them to perform tests and surveys in order for people to go about armed; thus, the performance of background checks — whether cursory or actually intrusive — is well within their purview. Towns and cities can pass carry ordinances for the public safety, and commercial sales are certainly subject to Congressional regulation.

One limit to all this, however, lies in the clause “shall not be infringed”, each of which must be honored. Infringement would be any trespass beyond the bounds customary at the date the Amendment was written, with certain exceptions permitted for those things that did not then exist (nuclear weapons, for instance — while I may consider myself competent to own one, I can think of a dozen people offhand who would NOT use them responsibly –Ed.) Thus, while it would be reasonable to prohibit prisoners from owning guns, the mere fact of someone living within a city’s limits would not in and of itself be a sufficient restriction. There are public safety arguments, and special cases for the restriction of rights; while you can be armed at home, there’s no reason for you to be armed at my home unless I want you to be.

The other limit is “being necessary for the security of a free State”. The writers had just gained independence from a foreign power, which even then was licensing incursions from across the borders and arming native tribes against us. It is evident that they considered threats both from within and without when they mentioned “security” and “free”; the Guard, the Navy, and our standing armies are specifically tasked with protecting us from external threats. It was equally intended that an armed populace would act as a counter to our own government attempting to impose tyrannical laws.

During the Prohibition era, the sale of alcohol was prohibited; the law was unpopular, and so was flouted with near impunity. Individuals suffered, but organized crime prospered, and shootouts were common between gangs and law enforcement. It’s notable that the most famous of these gangsters were only successfully prosecuted for income tax violations. This was a tyrannical law, and Repeal was justly celebrated — but, arguably, only because the populace was permitted to be armed.

At present, we have similar prohibitions on several drugs; these laws likewise are unpopular, and similarly flouted with regularity. Enforcement efforts cost hundreds of billions annually, but the drug industry brings in trillions. All we’re managing is to increase our prison population. This too is tyrannical law, and it is being resisted with great success — again, by an armed populace.

Immigration too is an area where laws are being tyrannically written and enforced. There are whole regions of the country where those of a certain class routinely employ domestic help which has no lawful citizenship; an estimated eleven million are present, working, without proper papers at any point in time; a similar number is apprehended and deported in any given year. Again, resistance to the enforcement of oppressive laws is practicable only because the populace is armed; there are areas where INS doesn’t go, and others where they need armored cars.

As of now, class warfare is the only area where the fact of an armed populace has yet to greatly influence policy. In large part, the BLM protests have targeted law enforcement, and not those who write the laws; the Occupy movements encamped around exchanges and office buildings, which inconvenienced workers rather than CEOs. It’s only a matter of time before this changes; fringe political movements on the far Left are openly arming themselves. And, while I personally deplore any act of violence, I nevertheless see it as inevitable that a celebrity billionaire will one day be discovered hanging from a lamp-post à la manière de Benito Mussolini.

If you’re a billionaire, this last may be genuinely worrisome, but for the rest of us it’s empowering, and an affirmation that the system is working as designed.

The same is not true of the rampage killings that end with dozens dead and, about half the time, with the suicide of the gunman. These are not common events and they don’t account for a large percentage of those killed with guns, but they do nevertheless generate fear among the populace, copycats, and so on; even if the deaths aren’t statistically significant, the damage certainly is.

A partial list of mass shooters compiled by the AP is filed under a headline that they tend to use loopholes to evade gun laws, which is misleading; more to the point would be the conclusion that any society that permits the ownership and sale of guns would be incapable of stopping a determined suicidal shooter from acquiring one or more. More telling is the repeat pattern of suicidal insanity, and a list of why no background checks were made, or in several cases an explanation of how the shooter managed to pass. The weapons were almost all acquired legally — some over a period of several years — and for the most part no history of significant mental instability was observed beforehand.

One can look at the vast body of shooting deaths and conclude that waiting periods for handgun purchases can help prevent impulse suicides, and it would be a simple measure to extend that to modern rapid-fire rifles in order to prevent “death by cop” and mass murder-suicides. Nevertheless, it seems evident just from examining the list that most of these events could not have been prevented by any simple, common-sense, readily-implemented solution. If present laws had been properly followed, exactly one of the listed attacks might have been stopped at the background check — but then again, due to private sales (both legal and illegal), it’s reasonable to presume that it would not have.

(For further discussion of the relative effectiveness of proposed gun control methods, please see this article. -Editor)

There are those who would argue that the price of freedom is constant vigilance, that our present law enforcement model ought to be transformed instead to one of pervasive surveillance and crime prevention. As many of the perpetrators were, at the time of their attacks, both disorganized and somewhat unhinged, this is not an entirely unreasonable supposition. The ubiquitous invasions of privacy and the great expense are costs that must be measured against the likely result; however, it must be borne in mind that even now there are those who can convincingly argue that, as we presently imprison one of every hundred citizens, we’re already living in an oppressive police state and it’s not working too well. Nevertheless, it is possible that, if most permissive crimes were stripped from the books, we could manage such an approach while neither bankrupting ourselves nor imprisoning an excessive percentage of the populace.

The simple alternative is, on its face, even more extreme: We could repeal the Second Amendment and conduct mass seizures of guns and ammunition. Doubtless drug and migrant traffickers, being the lawful and obedient sorts they are, would cooperate; if they too surrender their weapons and no citizens resist, we could avoid a bloodbath that would make the Civil War pale in comparison — and end up in a society that, by the reasoning of the Second Amendment, is no longer recognizably free.

It is, however, possible that, if we work within the Militia framework proposed within the Constitution, we could mobilize a large percentage of the population to perform the necessary work for us. Congress has the authority, already built into the Amendment, to create a body of volunteers (both men and women), organize and regulate them, and make certain they are trained in gun safety. By its nature, such a body would attract gun fetishists who are not eligible for military service; by imposing structure on what is presently chaotic, it is reasonable to presume that members could monitor one another for psychological instability. By so doing, we would create a citizen corps of volunteers ready and willing to mobilize to help in emergencies, or to remedy civic shortfalls — such as, for example, spending two weeks a year building housing for the homeless.

There are dangers in such an approach, and a price that would have to be paid. There always is. Our alternatives appear to be ineffectual, draconian, or both, however; that’s rather a compelling argument to give it a try.


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