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The Second Amendment

2011.02.10

“The right of the people to keep and bear arms shall not be infringed.”

Seems simple, doesn’t it?  Our constitutional right to have guns was so important that the Founders put it in only after the right to free speech.  It is clear, concise, elegant.  Everything you need to know is in that sentence.  As PJ O’Rourke said in 2003:

“The Second Amendment states that ‘the right of the people to keep and bear arms, shall not be infringed,’ period. There is no mention of magazine size, rate of fire or to what extent these arms may resemble assault rifles. All rifles were assault rifles in those days. Furthermore, if the gun laws that Massachusetts has now had been in force in 1776, we’d all be Canadians, and you know what kind of weather Canada has.”

So what the hell is the problem?  Why is there all this fuss over gun control in America, when the issue was settled over two hundred years ago?  The other nine amendments sought only to add to the rights of the nascent Americans; why would the Founders, in their retroactively infinite wisdom, stick one in there to limit a right?

Because that isn’t the Second Amendment.  It is not a simple, concise sentence containing the resolution to all arguments over gun control.  An alarming percentage of the population, led by a very vocal and short-sighted “Tea Party,” seems to forget the opening salvo of the statute:

“A well-regulated Militia, being necessary to the security of a free state…”

This changes everything.  (Immediately, you may notice that it turns the rule into a bizarre and not quite complete sentence.)  We are not now talking merely of citizens’ rights to have a gun, but their right to do so in a particular context.

Like it or not, the phrase “well-regulated militia” is not some purposefully vague phrase used to widen the scope of this measure.  The founding fathers did, in fact, have a very clear idea of what a well-regulated militia was.  I’ll give Alexander Hamilton the floor:

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements, is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the People, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount, which, calculating upon the present numbers of the People, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance, that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia.”

The militia, despite what Pale Horse of the Ohio Militia might think, seems in many ways quite married to the state.  The “militia” was to be at the service of the state, though Hamilton does say that the states themselves would get to appoint officers.  Hear that?  Citizens don’t get to appoint themselves.  After the jump, we learn that it’s in the final constitution as well.

The media often plays dumb about the phrasing of “well-regulated militia,” allowing right-wingers to latch on to it and assign whatever meaning the NRA deems convenient at the time.  But it is quite telling that most right-wingers I have come across don’t ever acknowledge or even know about the mentions of a militia in the rest of the constitution.  I am speaking of Article I, Section 8, in which we see that Congress’s responsibilities are:

“…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…”

I cannot believe anyone with a modicum of intellectual honesty would say that the militia spoken of in this section of the constitution is different from that mentioned in its second amendment.  We now see the right to bear arms in the proper perspective.

There is the argument that “the right of the people to keep and bear arms shall not be infringed” is itself the right, and the opening clause is merely an example or justification for said right.  In this instance, militias of any kind would not enter in to the conversation at all, and anyone could have all the guns he wanted.

This argument may be safely rejected.  First of all, it makes no sense to imply the authors would tack on a useless clause, if the original was so brief and direct.  Also, notice the little comma after the word “arms.”  This firmly links the latter clause to the former, providing a context for the right to bear arms.

Don’t take it from me.  For all the talk from conservative Republicans, Tea Partiers especially, to “get back” to the founding fathers’ mindset and view the Constitution as a rigid document, not a living one, they seem hopelessly ignorant of that period in American history.  Says Saul Cornell, professor of history at Ohio State University:

“The thing one has to appreciate in trying to understand the history of the Second Amendment is that we’ve had gun regulation as long as there have been guns in America. The Founding Fathers were not opposed to the idea of regulation. In fact, their view of liberty was something that they would have described as “well-regulated liberty.” The idea of regulation, the idea of reasonable government regulation, was absolutely essential to the way they understood liberty. In fact, in their view, if you didn’t have regulation, you had anarchy. Next to tyranny, anarchy was the thing they feared most. So it’s really almost impossible to understand the Founding Fathers and their world view, including their views of guns, without understanding that they were strongly committed to the idea of regulation. What’s interesting is that somehow this notion has completely dropped out of our modern debate.  …The thing that’s easy to forget, unless you immerse yourself in the time period in which the Founding Fathers lived, is the great threat that they saw as a standing army. And against that idea, they developed this notion of the militia as a citizen’s army in which all white men essentially would be forced to contribute their labor, their time, and indeed, to provide their own gun and their own ammunition so that they could take up the goal of public defense.

“And of course, nobody in contemporary America, even the most ardent gun-rights advocates, literally believe that they should drop whatever they’re doing at a minute’s notice and rush off to muster the way the Minutemen did. I mean, that’s how far we’ve gotten from the Founding Fathers’ world.”

The right to bear arms was for the security of the state, not the individual.  Even PJ O’Rourke, that intelligent and wise wit of the right-wing, altered his view in 2010: “The principal right that the Second Amendment seems to guarantee is the right to be a soldier.”  A soldier at the service of the state, not the soldier.  Gun control laws seem, to my mind, a way of keeping people honest about this fact.

No, the founding fathers did not envision every citizen with a gun.  They did not envision Jared Lee Loughner buying ammunition for his 9mm Glock at a Super Wal-Mart, or a man carrying an AR-15 to Barack Obama’s speech in Phoenix, or Sarah Palin killing wolves for sport from her helicopter.  Conservatives: if you are serious about getting into the heads of the “Founding Fathers,” and returning to their idea of the country, let the second amendment nonsense go.

 

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