What gun-rights does the 2nd amendment really protect? When I studied the amendment itself, I was shocked to discover that much of what I thought it meant was bullshit. In fact, its an amendment only a Democrat could love.
“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.”
This is, undoubtedly, a strangely worded sentence. I am not sure if the second comma means “and” or “which is.” Regardless, for the last few decades (Zakaria), the understanding of this amendment has come to mean that it protects an individuals right to bear arms. However, it seems more likely that this amendment is meant preserve the power of the states and other communities in the face of federal overreach. Washington DC, in other words, can take away the guns in your closets, but not the guns in your community armory; it can potentially take away your handguns, but not your well-regulated militias.
I want to explore some of these terms to better put us in the historic context.
Militia – In 1787, there was no standing federal army. For years, any attempt to create one was considered suspect. When Washington called one up to crush the 1791 Whiskey Rebellion, it was a highly contentious move. Most of the colonists wanted to keep federal military might to a minimum (they would be appalled at the size of the federal armed forces today); if a war was necessary, the militias should be called up, not a federal army. Of course, a federal army was eventually created, but the thought was that state and local militias would always serve as a deterrent to federal power. The single individual, one should note, was never thought of as a militia. Militias were always formed via a geographically bound cooperative—state, municipal, county, etc. After all, what could one man do with one musket? On their own, individuals had no ability to check federal power.
well-regulated – Militias, and individuals, were always seen as potentially destructive groups that could quickly turn into roving bands, plundering lands far from their own homes while unsympathetic commanders looked the other way. Indeed, the founding fathers loved democracy and feared the people at the same time. This was the rationale, for instance, behind the creation of the electoral college. It is also why we have a representative democracy, and not a true direct democracy like Ancient Athens, where we, as a people, would vote directly on policy (i.e., should we invade iraq?). With this fear, colonial Americans of all stripes expected that militias themselves would always be accountable to some sort of local government. In other words, there was no such conception as a “private militia.” The individual or group was not supposed to take the law into their own hands. They had to be connected to local government and subject to it.
being necessary for the security of a free State – The point of having militias, according to the second Amendment, is the security of a free State. Free states, in other words, required well-regulated militias that were more loyal to them than to the federal government. The whole Bill of Rights, after all, was an attempt to limit the power of the federal government; Washington must not be allowed to limit the states ability to arm themselves with responsibly-regulated militias.
the people – Is the right of the people to keep and bear arms an individual right or is it a group right? If “the people” is Joe and Ted, then yes, the 2nd amendment might guarantee Joe’s right to keep and bear arms at his house. But this is unlikely, considering the context of the first few clauses and how “the people” is used throughout the Constitution.
The phrase, “the people,” is used 9 times in the Constitution. It is mainly used to describe one enormous will—some sort of collective being even.
- In the preamble, “We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” It seems absurd to think that the people here refers to Joe and Ted. Certainly some Joes and Teds were not a fan of the creation of the federal government. Rather, the majority of the people were speaking through their representatives, and their representatives were in turn speaking together, with one voice. That voice is the people, and the wishes of “the people” is not the same as the wishes of every single individual.
- Article 1, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the Several States.” Obviously, “the People” here cannot refer to individuals, but the will of the majority—house members do not have to be unanimously approved by every individual.
- In the first Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In this instance, “the people” has the right to act as a group which assembles and petitions government. It is also noteworthy that in prohibiting free exercise of religion and condemning speech, or the press “the people” is not mentioned, which might mean that they are supposed to be individual rights.
- In the 2nd Ammendment, it is mentioned in the context of groups, i.e. militias, but of course I cannot use this instance of “the people” to prove my point.
- The fourth Amendment: “”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” This appears to be an exception to my interpretation of “the people.” Here, it likely means “all individuals.”
- The 9th amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I am not sure about this one. Could go either way, but there is not much to go on.
- The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This one implies that “the people” are smaller than states. That might mean individuals, but it also might mean counties, townships, etc.
- The 17th Amendment: “The Senate of the United States shall be composed of two Senators from each State, elected by the people.” Like the second instance, “the people” cannot mean to refer to “all individuals.”
- Again in the 17th Amendment: “…the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” Like the second and eighth instance, “the people” here cannot refer to “all individuals.”
So of the 9 instances where “the people” is used in the Constitution, 4 must be referring to collectiveness, 2 are likely referring to collectiveness, 1 is entirely unclear, and 1 is likely referring to individual rights, and 1 is definitely referring to individual rights. I conclude that the Constitution uses “the people” differently. Though usually it refers to groups speaking with one voice, context is king. Because the 2nd Amendments emphasis on militias, I think it highly likely that “the people” here does not refer to all individuals. Therefore, I cannot say that the right of “the people” to keep and bear arms is an individual right to own arms.
Arms – Today, you and I cannot imagine the advancements in technology that will be in place 226 years from now. Even 26 years ago, this was a phone:
Today’s “phone” has a bit more uses:
Do you remember when phones only made calls? I remember the old rotary phones. Of course, they, like iPhones, were called “phones.” But it would be absurd to think that all thinking about rotary phones 26 years ago applies to the iPhone of today. Imagine where “phones” will be in 226 years?
In other words, technologically-based concepts like “phones” are plastic; they stretch and change enormously across times. So too, is the term “arms.” 226 years ago, when the 2nd Amendment was written, this was an ‘arm’:
These muskets were accurate about 30-40 yards out and trained individuals could fire 3 rounds per minute. Pistols, likewise, had to be loaded the same way. After the civil war we slowly got automatic and semi-automatic weapons. And, of course, with the modern sniper rifle, scopes, etc., an “arm” has enormously more destructive power.
The AR-15, for example, shoots 800 rounds per minute and has an effective range of 400-600 meters. 226 years ago, the founding fathers would have been entirely unable to imagine that this was possible, they did not know about handguns (revolvers did not come for another 50 years), tanks, bomber aircraft (or any aircraft), and of course the atomic bomb. They were as clueless then as we are when we try to imagine what arms will be like in 226 years for today, in 2239 A.D.
If not now, at some point, shouldn’t we rethink what an “arm” is and what sensible rules around “arms” might be? Fortunately, the right to amend our constitution is a constitutional right too. In fact, Jefferson though that we should have a new constitutional convention every four years, and re-write the thing completely if necessary. He thought it was tyrannical to subject future generations to laws or systems that might no longer make sense, and that they themselves were not a part of creating. Prescient, but I would not go as far as re-writing the constitution. It has been and will be an extraordinary document for centuries to come. In fact, we do not need to change the 2nd amendment at all. We simply need to recognize what the Amendment protects and what it does not.
Based on my research, this what I have concluded about the 2nd Amendment:
- The 2nd Amendment stops the federal government from disbanding well-regulated militias. States and local governments can form, equip, and train, and must strictly control, groups of individuals who are subject to the authority of local government and act on its behalf. The local government can arm that group with all the arms necessary for the security of the state.
- However, if that group is not well-regulated, or is not a group at all, and is not subject to local government, the 2nd Amendment does not offer protection. Specifically, the 2nd Amendment does not protect the individual right to handguns, automatic or semi-automatic weapons of any type, conceal and carry, grenades, and especially not a basement arsenal. All “arms” must be used in the context of a well-regulated militia, or, in a word, community.
- The is my conclusion on what the 2nd Amendment means, but not on what it should mean. That is another debate entirely, a policy debate, in this blog I have been attempting interpretation only.
Wars, in 1791, were fought by muskets and cannon, and that is all they knew. By allowing militias to use muskets and cannon, the founding fathers wished to ensure small communities would be free. Of course, this is no longer a viable defense when the weapons of war are so expensive (one F-22A fighter costs $150 million). We have to rely on larger and larger communities to be able to create serious security forces. But we forget that even muskets were very expensive for American farmers in the 1790s. Many did not own one. For this reason, the local township often kept an arsenal which they would use to supply its citizens in the case of, for example, native american raids. Armories, therefore, served an important function of providing a militia with weapons of war yet also controlling their use. Those who bear arms had to be supervised, trained, and made subject to the authority of the community.
This seems brilliant to me. Crazy people, like the Aurora shooter, would never have gotten guns if he had to participate in a community in order to gain access to them. So, I suppose you might say I am a supporter of 2nd Amendment rights, but my interpretation might be a little different.
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February 3rd, 2013 at 5:13 PM
The writers, signers, and the people who forced the federalists to tack on the Bill of Rights also all agreed with Scalia, and they wrote abundantly on the subject of the Second Amendment.
Besides the dubious trust one might place in the government to decide who gets to defend themselves against it in the case of abuse or tyranny, there are copious sources that show beyond any reasonable doubt about commas in the clause, that the Second was meant to protect each citizen.
The history of gun control in the United States in fact shows that they were always meant to protect government officials that abused the victims of said disarmament laws. Web sites like Black Gun Owners of America and the one owned by the Jews for the Preservation of Gun Ownership show examples of that history.
February 4th, 2013 at 11:30 AM
Thanks for your comment trutherator. Do you believe that the term “well-regulated” would then apply to individual rights as much as it would to militias? Also, what do you think of my assertion that “Arms” is anachronistic? I would appreciate your thoughts as I try to understand this amendment.
February 2nd, 2013 at 11:47 PM
The Supreme Court disagrees with your analysis.
Justice Scalia wrote the majority decision in Heller vs DC, the decision which explicitly stated that as a matter of constitutional law, the right to keep and bear arms was as much an individual right (extended to cover violations of individual rights by state and local bodies by the 14th Amendment) as the 1st or 4th Amendments.
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.
This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.
This meshes with a number of the Founders’ quotes about arms and just who the militia were (that is, all able bodied free men). A few such quotes are collected here:
Your interpretation of the Second Amendment is incorrect, both historically and vis-a-vis current Supreme Court precedent.
February 4th, 2013 at 11:27 AM
Thanks for your comments. First, as was mentioned on Facebook and by yourself, my piece is not holistic, I don’t deal with a range of issues, especially supreme court cases. However, I think it a bit odd that yourself and others have used the supreme court to say that i am incorrect in articulating alternative views on the 2nd amendment. The supreme court is a fallible institution, as history has demonstrated.
As for your quote from wikipedia, from what I understand, it is basically saying that I am wrong in my analysis of how the constitution uses “the people” and how every time it is used to refer to individuals. This is not the case. In the first, second, 8th, and 9th instance of use of “the people,” it refers to the majority opinion as “the people.” (Perhaps though, there are six references if you don’t include the amendments past the initial bill of rights.)
Also, of course I would have to do more research, I am a bit wary of a series of one-sided quotes from any era. And it is hard for me to imagine that, with how much the founding fathers distrusted “the people,” the founding fathers being totally fine with entrusting the individual with an “Arm” that can now effectively kill dozens of people within seconds.
Thanks for your comments! I greatly appreciate the challenges.