Tag Archives: AR-15

2nd Amendment—What’s it really about?

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.”
  6. 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.
  7. 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.
  8. 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.”
  9. 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:

This phone was built and in use in 1987.

This model was built and in use in 1987.

Today’s “phone” has a bit more uses:

iPhone with rotary phone app.

iPhone with rotary phone app.

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’:

Revolutionary war-era musket

Revolutionary war-era musket

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 is a weapon protected as an “arm” under the 2nd Amendment.  The Colorado shooter legally purchased one before shooting 70 people in the summer of 2012

The AR-15 is a weapon protected as an “arm” under the 2nd Amendment. The shooter legally purchased one before shooting 70 people in a Colorado movie theater in the summer of 2012

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.

Mass Murder’s Bright Future

Grief, mourning…blah blah.  I’m trying my best not to cry because tears seem so hypocritical: what about Darfur?  What about the Congo where this happens regularly?  But I can relate to movie theaters and Americans!  And I really do, my heart reaches out to them.

Also, James Holme’s theater shooting is actually kinda unique.  Most killers, even the crazed Joseph Kony, is still trying to get something.  Jihadists are sincerely trying to punish the infidel at least.  James Holmes, he’s just crazy evil.  Doing it for no damn reason because he’s totaly evil.  Right?  Shit…yeah he was a counselor at a summer camp for needy children in 2008, attended UC Riverside as a scholarship student and graduated with highest honors.  “Academically, he was at the top of the top,” Chancellor Timothy P. White said.  Campus police had no run-ins with him.  Niether did the police at the University of Colorado School of Medicine.  It looks like the only problem he’s had with the police was a speeding ticket in 2011 (CNN).  He actually seemed to be doing fine before he dropped out of school about a month ago.  Still, he enjoyed a cold one recently with a friend, which can’t make him too nuts:

“Jackie Mitchell, who lives close to Holmes, had a beer with him on Tuesday.  Mitchell was stunned at news of Holmes’ alleged involvement in the attack.  “You would never guess he was a violent guy,” Mitchell said, describing Holmes as “nerdish” and “a book-smart type guy.” (CNN)

But of course, there was something wrong with him.  Apparently he called himself “the Joker” when he got arrested, had dyed his hair red, and his voicemail was described as a creepy batman-themed fiasco with “evil” laughter.  And also he shot 70 people in a crowded movie theater wearing .

On the first airing of the Factor with Bill O’Reilly, which I watch because I love Bill, “nothing can be done about this; the guy was just evil” maybe four or five times.  I hear this sentiment echoed in the news, and most experts seem to agree, nothing can be done about this.  What can be done about pure evil?

Really?  Ok.  First off, the guy was obviously not totally evil.

Also, it seems that we can do something about this if we wanted.  The guy bought $6,000 of ammo on the internet.  Large volumes of tactical gear was shipped to his house and work in the mail (CNN).  From whom you might ask?  “Chad Weinman, CEO of TacticalGear.com of Chesterfield, Missouri, told CNN earlier that his company had a receipt matching Holmes’ name and his Aurora address.”   The receipt showed $306.22 spent on a bullet-proof vest, magazines, 100 round ammo clips, and a big knife.  CNN reports:

“Holmes paid for a two-day air delivery when he placed the order on July 2, which would seem to indicate he wanted the materials in a hurry, Weinman said.”

The firm sells equipment to military and police personnel — as well as weekend warriors, Weinman said.

The gear that the firm believes it sold to Holmes is manufactured by a company called Blackhawk Company, a “popular brand in tactical circles,” Weinman said.

“We were pretty shocked to have discovered it,” Weinman said.

“Oh, my God, we couldn’t believe it” was how one of the company’s owners reacted, Weinman said.

The AR-15, one of Holmes four weapons, was inherited as a family heirloom from his father’s father father, who bought it from a local fur-trapper and fought with it in the Civil War.  Sometimes he uses it to hunt deer.

Purchasing a 100-round magazine for an AR-15 is unusual, weapons experts said. The AR-15 is designed for easy reloading. “Even without the grand-sized mags, many people who are practiced can reload in 1½ to 2 seconds,” said Steven Howard, a Michigan attorney and security and firearms expert.”

James had recently bought the AR-15, as well as 3,000 rounds for it.  CBS News says that he went to a Fed Ex to pick up 150 lbs of ammo he bought at once.  A UPS driver says Holmes had 90 packages delivered to his workplace on the University of Colorado medical campus.  He bought the guns at Gander Mountain Guns and a Bass Pro shop in May.  He had tear gas.  He had smoke bombs.  While shooting people, the police cheif said he wore  a helmet, vest, leggings, throat protector and groin protector (source).   All in all, Holmes spent at least $15,000 in the last few month or so on guns, chemicals, explosives, and ammunition. (CBS)

My point, I guess, is that this guy was obviously prepping for something and had radically changed his life recently for no clear reason.  Why can’t background checks for buying guns and such large amounts of ammo include a short investigation into recent mental health?  Is that too onerous?  Maybe there are better ideas out there.

Now, I am not a big gun control guy, and some 2nd Amendment people make some sense, but obviously everyone, NRA fans and not, are taking crazy pills.  The truth seems fairly simple: James Holmes was not evil, but he did go nuts.  Americans, like all people, have a tendency to go nuts.  But Americans can buy guns, thousands rounds of ammo, combat gear, whenever they want, no questions asked, and go nuts with style.
  1. In 1949, Howard Unruh killed 13 of his neighbors and was committed to mental institution.
  2. In 1966, Charles Whitman kills his wife and baby in the morning and then shoots 46 people, killing 16.
  3. In 1982, 40 year-old prison guard George Banks kills 13 people, including 5 of his own kids.
  4. In 1984, James Huberty kills 21 adults and kids at a local McDonalds before being shot by a policeman an hour later.
  5. Cho Seung-Hui, the VA Tech shooter, looking altogether sane as he calmly describes his rationale for killing random strangers: “I’m getting back at rich fucks” (paraphrase).

    In 1991, 35 year old George Hennard crashes his pickup truck  through a wall, shoots and kills 23 people, and then shoots himself.

  6. In 1999, in Colombine, two students kill 13 and wound 23 others before killing themselves.
  7. In 2007, 23 year old Seung-Hui Cho kills 32 people and wounds many others.  Before killing himself, he sent in a tape laced with profanity citing the need for revenge on the wealthy.
  8. In 2009, 28 year old Michael McLendon shoots 10 people, including his mother, grandparents, aunt and uncle, and then himself.
  9. In 2009, a man named Wong shoots 13 people at an immigrant community center, and then kills himself.
  10. In 2009, at Ft. Hood, Nidal Hasan, age 39, kills 13 people and shoots 32 others.  (Source is CNN)
So, how can we still be shocked?  How can the guy who sells tactical gear over the internet be shocked?  How can Bass Pro be shocked?  How can I be shocked?  But I am.  It is shocking how shocked America is.  Shootings like these have been happening for a long time and will keep happening as long as people become mentally ill and have access to guns.  If they had access to can openers, they would use that.  If they had access to nuclear warheads, they would use that.  Frankly, I am surprised it does not happen more, considering US rates of suicide and depression.
So, what is the solution?  Maybe we should ban guns entirely.  Maybe.  Or maybe we start with just asking some more questions when someone buys an AR-15 with a 100-round magazine.  That is, of course, if it is not too inconvenient.
I’m with Bloomberg.  I want to hear Romney and Obama talk about their position on gun control.