“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.”2nd Amendment, US Constitution
It’s a simple enough statement, especially to have caused such pervasive disagreement in modern society. As with most such arguments, it has polarized past the point of debate, and now all that is left is attack and defense among the unreasoning without any consideration being paid to the actual meaning.
So let’s take a moment to discuss the meaning.
“A well-regulated Militia…”
In our previous article we discussed the meaning of the term “militia” in this context. It is neither limited to the National Guard nor intended to authorize random gangs of armed civilians marching about in the streets under their own command. Instead, it means the entire body of able-bodied citizenry, the which can be mobilized by local or state government in order to help against invasion, emergency, or disaster. Rather than the outdated concept some suppose it to be, it is an active principle that impacts our lives on a regular basis.
Congress and the states each have explicit authority to regulate the militia; Congress provides for the “organizing, arming, and disciplining”, and each state has full authority to choose officers and train the militia according to the instructions of Congress. Some states have passed laws forbidding volunteer military companies that aren’t specifically authorized, but we’ve been unable to find any laws against civilian search-and-rescue or emergency response groups. (Presumably, the Boy Scouts and Explorers would be rather upset by that sort of thing, and we’d notice.)
The limits of the duty of Congress to regulate the militia are not narrowly defined with respect to training requirements; however, like any other such, any other right not reserved to Congress or the states remains securely the province of the individual. As such, while it would be entirely reasonable for Congress to mandate firearms training and states to designate arsenals, this authority cannot be used to require anything from people who aren’t in the militia (for instance: women, children, and the superannuated) or to deprive individuals of their rights unless there’s a war on.
“…being necessary to the security of a free State…”
The discussion among the Constitution’s framers with respect to this passage were, by and large, focused on the need to maintain a standing army against the dangers of any such body to the liberties of the people. It was broadly accepted as a truism that a powerful, well-drilled militia force would be required to defend the borders of the nation from invasion, that it could be deployed to suppress riots, and that Congress could call out the militia even to enforce the law; this indeed was codified within Article 1 Section 8. A militia force, being composed of the people, could hardly be used to oppress them.
The shortcomings of the militia system became painfully evident during the War of 1812, notably at the debacle that was the Battle of Bladensburg, where the military failure led to the burning of the Capitol and White House. Resistance to change remained through the Civil War, and it was only during the First World War that the modern system of a permanently organized National Guard became standardized. Even so, the standing army was kept small until the Second World War — after which it ballooned to an enormous size.
The original fears that a large standing army would be not merely an onerous expense but also a threat to the liberty and freedom of our own citizens may appear at first glance to be nonsense. However, modern critics would point to our present military budget, which is greater than that of any other ten nations in the world combined, as well as our prison population, which is larger per capita than that of any other country — not to mention our heavily militarized law enforcement contingent. This contention, then, must in justice at the least be seriously considered.
“…the right of the people to keep and bear Arms…”
This is the first active clause in the Second Amendment, and defines its scope. Notably, it does not limit itself to the Militia, though the preceding phrase does inform the motivation. Like the majority of the Constitution, it grants no rights in and of itself but merely recognizes as explicit fact an extant right. The arms written of, according to the debates of the founders and every SCOTUS decision since, certainly include the most modern military weapons of that time or, indeed, any — though not every weapon ever invented (US v. Miller 1939). The right spoken of is to both keep these weapons and to bear them.
One reason this right is expressed as applying to the whole of the people may be found in the military maxims of Vegetius, a work with which every learned man in Revolutionary America would have been familiar. This book, the only surviving manual of arms from the Latin, begins with the argument that the Romans only conquered due to the superior training of their soldiers rather than any intrinsic quality. For any militia to be an effective defense force requires that it be similarly well-trained, with the youth of the country being taught the use of arms from a young age by their elders.
“…shall not be infringed.”
As with all such rights within any social contract, this right is intrinsically limited as and when it interferes with the rights of others. That much is axiomatic; and, by extension, Congress has not merely the right but a positive duty to legislate any necessary protection for its citizens to be able to enjoy life, liberty, and the pursuit of happiness.
The choice of the word “infringed”, however, is telling. If some limited restrictions on the general populace were to be countenanced yet a bare minority of arms protected, a narrower term like “eliminated” would have been employed. “Infringed”, however, indicates that the entire right must be kept inviolate, that no segment of the citizenry should lose it, and that no broad exceptions may be made. Local ordinances and some state laws have withstood judicial challenges so long as they are not onerous.
It is even arguable that, under the wording of the Second Amendment, any action taken to counteract or modify it even by further Amendment would be illegal. Most Constitutional scholars do not take this position, though many do believe the text of the first ten Amendments should be held sacred.
Gun Control and the Second Amendment
Without eliminating or modifying the Second Amendment, there remain several practicable avenues toward meaningful gun control laws. Persons can be deprived of rights through due process, for example, as with punishment for a crime, imprisonment for those designated a danger to themselves or others, and even eminent domain. This certainly provides scope for “Red Flag” laws, if they be well-written and executed. Similarly, background checks and any associated waiting periods are hardly onerous, provided the privacy of the gun owner is always maintained.
The Miller decision affirms the rights of jurisdictions to regulate certain types of weapons designed for non-military purposes, such as the sawed-off shotgun that was the subject of the case. Bans on fully automatic weapons, explosives, and so on have similarly been upheld. However, overly restrictive laws against the ownership of handguns or the possession of any assembled weapon have been repeatedly been struck down (DC v Heller 2008, McDonald v Chicago 2010). This includes mandatory trigger lock and/or gun safe use, though not ownership.
One aspect of all this that is rarely mentioned is that of gun training. It is not merely the right but arguably the duty of Congress to mandate weapons safety and marksmanship training for any eligible citizen who offers no conscientious objection to joining the unorganized Militia. It should be evident that training could only serve to reduce per-capita gun accidents, the which claim more than a hundred lives per year. Moreover, this would offer the opportunity to individually examine and test every member of the public interested in gun ownership — especially as any objector who later purchases a gun could be presumed to have falsely objected in an effort to evade the law. Doubtless such a program would be expensive, but it would certainly fall within the explicit scope of Congress and the states to well-regulate the Militia — and it could provide a broad foundation for universal screening for “Red Flag” laws to which no valid Constitutional objection could be raised.
The militia tradition has served us well through our long history, arguably better than any standing army. It provided the soldiers who stormed the trenches at the Marne, the beaches at Normandy, and the walls at Chapultepec, the Continental army at Yorktown, and both sides of the Civil War. Should world war threaten us again — and Putin’s actions in Ukraine strongly suggest that it may — we will once again need to fill the ranks of our armies with the children not of of hunters and farmers but of Suburbia and the inner cities. The very least we can do for them is teach them in advance how to camp, march, shoot, and follow orders. And, if we can save a few lives in the process, that could even turn practical necessity into something of a blessing.
We must take care for our future: Nobody else will do it for us.
(Image is iconic, taken in this instance from a Pritzger Museum exhibit. The audio they have on file is unreal; stop by their site and listen.)