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A Welcome Clarification on the Second Amendment and That Militia Business

If, as the gun grabbers would have it, the Second Amendment does in fact only bestow upon military forces they perceive to define the “militia” the exclusive right to bear arms, and denies this basic and vital guarantee of freedom to individual citizen, then our Constitution is even more unique than previously understood. Our Bill of Rights must be remarkable among the autographs defining nations by numbering among those ten rights therein contained, that are given directly to the people as shields against the power of the state, a grant to the nation’s military of the right to own weapons.

One might have naively thought, absent this welcome clarification, that the right of a nation’s armies to possess arms was assumed. Who would have thought that a Bill of Rights was needed to permit an army to have guns? Imagine the foresight of our ancestors, who sought a Bill of Rights to guarantee “the people” of the United States protection against the power of the government they created, to have so memorialized the mandate of their intent that the government in power at any given time be forever assured the right to ownership of weapons that would, by the same words, be forever denied to the very people who had demanded that a Bill of Rights be placed in writing for their protection before agreeing to form a nation.

Edwin Kagin ©2009. from “Baubles of Blasphemy,” American Atheists Press, 2009.

Comments

  1. says

    This exaggerates a strong case.

    It is more plausible than the argument you advanced ad arguendo that the 2nd amendment secures a right to members of state militias against federal interference. This would make it not even unique among the bill of rights, which also includes (in addition to a lot more than 10 individual rights) a reservation of rights “to the States” and a proscription on certain changes in congressional pay that it is difficult to construe as an individual right.

    I agree broadly with the Heller court that the 2nd amendment does create an individual right, but it’s far from as obvious as your argument would have it. The argument given totally elides the issues of federalism involved by referring only to “the nation’s military.”

    • Z says

      The Constitution and its Amendments do not create rights. They protect and guarantee rights already owned or claimed by citizens.

  2. Randel says

    Mr. Kagin, you describe the 2nd amendment as a sort of prenup agreement between government and it’s subjects that in effect says, if you don’t like what we are doing, you can shoot us. Not very logical.

  3. A Hermit says

    In any case the key words are “well regulated…” The gun lobby’s insistence that sensible regulation is a violation of the 2nd amendment is absurd.

    There’s another side to the militia thing, too…http://www.vpc.org/fact_sht/hidhist.htm

    In his 99-page article, Professor Bogus argues that the evidence including an analysis of Madison’s original language, and an understanding of how he and other founders drew on England’s Declaration of Rights strongly suggests that Madison wrote this provision for the specific purpose of assuring his constituency that Congress could not use its newly acquired power to deprive the states of an armed militia. Madison’s concern, Professor Bogus argues, was not hunting, self-defense, national defense, or resistance to governmental tyranny but slave control.

    There’s a whole lot of history that gets swept under the rug in these debates about guns…

  4. nichrome says

    “Gun grabbers”??? That this pejorative can be used by a writer on FreeThoughtBlogs and by the National Legal Director for American Atheists to dismiss anyone who might seek some sane and reasonable gun control in the US (as A Hermit noted: “well regulated…”), makes me all the more happy that I moved to Canada.

  5. ellien says

    “One might have naively thought, absent this welcome clarification, that the right of a nation’s armies to possess arms was assumed. Who would have thought that a Bill of Rights was needed to permit an army to have guns?”

    Considering America did not have an army when the bill of rights was written and we depended on civilian militias I would have to say you have completely missed the point.

    http://consortiumnews.com/2012/12/17/hijacking-the-second-amendment/

    The 14th amendment is what gives individuals the right to bear arms.

  6. says

    I’m with most of the commenters here; frequent strawmans and a seeming lack of understanding of most of the arguments against the position he holds drive me to not consider many of Kagin’s arguments/counterarguments on gun, gun control and gun rights to be very persuasive. I hope his arguments concerning theism and religion are better formulated.

  7. greg1466 says

    I’m used to hearing the ‘they’re going to take away all our guns’ straw man on Facebook, but I’m really surprised and disappointed to come across it here at FTB. While everyone, no matter how rational, has their irrational moments, some are more obvious than others. But maybe we’re all being to quick to judge the ‘gun grabbers’ quip. Maybe Edwin doesn’t really equate ‘gun control’ with ‘con confiscation’. Edwin?

    A Hermit, thanks for the link. Certainly worthy of more research.

  8. Jrod says

    Gun grabbers?

    GUN GRABBERS?!?!

    It’s funny, but I wasn’t a “gun grabber” in the sense that I had absolutely no desire to see guns banned. At least I wasn’t one until this latest round of BS from the gun lobby and people like you, Kagan. However, after about two solid months of insanity pouring from the mouths and pens of you people I’m inclined to think otherwise now. It’s like the pro-gun side of the argument is dedicated to being as unreasonable, insulting, and irresponsible as possible.

    I mean, you’re basically saying that you deserve the right to decide who lives and who dies, and that there should be absolutely no oversight to to this right from us unarmed sheeple.

    Oh, what’s that? That’s not your position? Well I’m not a “gun grabber” either, asshole. If your side refuses to even have this conversation without flipping out about bans and jack-booted thugs and watering the tree of liberty with your fellow citizen’s blood, why exactly should I have any confidence in your ability to accurately perceive reality or to treat guns with the respect they require? I mean, do you actually understand that we’re talking about tools for punching holes in people at range and not magical anti-tyranny talismans, right?

    This doesn’t even get into the factual errors in this post. If you honestly think that the 2A’s purpose was to allow the overthrow of government, you’re simply wrong. It’s not true, as has been demonstrated every time anyone has actually tried to use their guns for that purpose.

  9. Kevin Boyce says

    What Doug said at #1. The amendment says nothing about the a national army. It specifically says “State”. This was changed from an earlier draft which did appear to refer to a national militia. Which thus implies that it specifically refers to state militias.

  10. Glen says

    A militia isn’t an army. The Second Amendment guarantees private citizens the right to bear arms so that they can participate in well-regulated militias. The closest modern equivalent would probably be the National Guard. So anyone not participating in a well-regulated militia isn’t guaranteed anything.

    Furthermore, no one is trying to grab all the guns. We are trying to make them well-regulated. We regulate free speech; we regulate automobiles; we regulate what you can do on your property that might affect other people; and we can and should regulate guns. Nothing in the Constitution suggests otherwise, and the Second Amendment even specifies that militias (the established basis for gun ownership) should be well-regulated. The government of the United States is not, and should not be, powerless to protect its own people.

    • Z says

      Since keeping and bearing arms is a right of private citizens, as you correctly state and to which I agree, it makes no sense to then say that anyone not in a militia doesn’t have this guarantee.

      Interested parties to this and similar discussions also don’t seem to be aware of the fact that the law creates two classes of militia, and that ALL able-bodied persons are members of one or the other. But, since the keeping and bearing of arms (of any type) is an individual right guaranteed to the people, actually serving in a militia is not a prerequisite — but all citizens may be called if necessary.

      In any case, the law of the land as interpreted by the US Supreme Court is that ownership of firearms is an individual right. Anyone who disagrees is free to take it up with them.

  11. A Z says

    “Gun grabbers”? The words of a delusional pinhead.

    You’re nothing without a gun in your hand, which means you’re nothing even with a gun in your hand.

  12. Mandrellian, Kicker of Biological Goals says

    “Gun grabbers”? Not exactly the way to begin what I presume you think a reasonable argument. It ranks right up there with the equally fatuous “guns don’t kill people, people do.” We know people kill people, that’s WHY we want better control over which people can purchase which weapons. This ridiculous extrapolation of “gun control = banning all guns forever and grabbing all my guns tomorrow” is childish and in stark ignorance of reality.

    If you looked around for around three minutes I think you’d find most advocates of gun control aren’t after a complete ban on guns, the repealing of the 2A or the enforced dispossession of all currently owned firearms – least of all because such things simply aren’t realistic.

    What control advocates want is not literal “gun control” but better “people control”. Before that last phrase gives rise to a libertarian tantrum, what people want is better and more effective control over who gets to own firearms and a reasonable position on which firearms are permitted. Just as driving licenses aren’t given to whoever asks, what people want is criminal background checks to prevent just anyone walking into a gun store and walking out with an arsenal, and possibly competence testing or training before certain weapons can be owned. Given that the primary function of a firearm is death and the primary function of a car is transport, isn’t it even the tiniest bit reasonable that restrictions and conditions regarding firearms be a little stricter and better enforced than those regarding cars?

    It really isn’t too much to ask that people with criminal or violent backgrounds be restricted from certain weapons or from weapons entirely; it’s also not unreasonable to expect people to wait until a check has been perfomed before they can take delivery of a weapon. This is all aside from any arguments for banning semi-auto military-style weapons or accessories (what a civilian needs a military weapon for is beyond me. Home defence? Maybe if you’re Scarface. Hunting? Any hunter who needs a semi-auto to bring down his target isn’t actually hunting – he’s just killing).

    The right to own firearms may well be absolute (in some peoples’ eyes) but it doesn’t mean that that right can’t or shouldn’t be better administered by the state, in the interests of all citizens. As an atheist, some might think you’d have grown out of revering words written by humans so absolutely that any potential modification to them, however slight, or any argument, however mild, against the mythology that’s grown around them brings petulant tantrums and delusions of persecution. But if there’s anything I’ve learned about atheists over the last couple of years, it’s that many of them have their own holy writs that they hold to as absolutely as any wild-eyed, mouth-breathing fundamentalist holds to his scripture.

  13. says

    Lets examine this from a framework of Enlightenment thinking for a second. Under the philosophy of John Locke (who, as we may remember, was the primary influence behind the legal framework we currently have), government is constituted as an exchange between the people, in which to safeguald a set of rights, other rights are relinquished. Chief among those right relinquished is that of force – the defining characteristic of a government is that it attempts to maintain a monopoly on the use of force (this fact is much more consistent across space and time than the idea of government as a contract, but whatever. Our government was founded on the idea of contract or exchange).

    The United States government was unique among governments because it was founded explicetly on this contractual idea, with the constitution as the document laying out the specifics. It lays out the form of the government, and explicitly reserves just one right for the people: writ of habeus corpus. Of course, it was later ammended to reserve many more rights, including the tenth ammendment which reserves all rights not otherwise delimited. However, the one thing it does not reserve for the people is use of force; this is still the exclusive domain of the government (even if you consider use of force a “not otherwise delimited” right, it still devolves to the state governments, which you’ll notice deny use of force to the people through statute).

    So, if use of force is exclusive to the government, and the constitution was written explicitly with this in mind, whence the second ammendment? Simple: The militia is itself a government entity. Its role was self defence and law enforcement (the second of these was specifically denied to the armies raised by the federal government). So, to maintain the effectiveness of the militia, the right of owning and using weapons is reserved to the people. Notice, however, that the right of *force* is still withheld.

    So, there is nothing in the second ammendment that reserves the right to use of force for the people, and as the founding principle of government was the exclusive monopoly on the use of force, that government, either federal or state, has both an interest and obligation in controlling and regulating the use of force by other entities. Then, the only thing up for debate is what form that regulation is allowed to take… and as the federal and state governments are allowed to both punish and prevent violations of rights, we can see that violations of the government’s right to monopoly of force can be subject to preventative legislation just as any other violation of right. The fact that the right is reserved exclusively to government rather than the people has no bearing on that.

    • juice says

      Wow, they really tortured logic to come up with their lame bullshit about what “the people” means in the second amendment. The petition and assembly clauses of the first amendment only refer to the whole of the American People collectively? Really? Would they argue that only certain designated people with certain licenses and training, or in certain professions, be allowed to assemble? Jeez Louise.

  14. Reginald Selkirk says

    they perceive to define the “militia”

    Why not expand your quote a bit to cover “a well regulated Militia”?

  15. juice says

    The militia clause is a distraction. Yes, a well-regulated (well-equipped, well-trained, and well-organized) militia is necessary for a free state, but the right of the people (that exists despite the existence of the constitution) to keep and bear arms shall not be infringed (limited or undermined). Even if you’d like to limit or undermine the right of the people to keep and bear arms, what tools will you use to threaten those who refuse?

    • says

      From the majority opinion in Heller v. DC, written by Scalia:

      “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

      So it’s erroneous to think the 2nd says there can be no limitations placed on guns.

      “what tools will you use to threaten those who refuse?”

      I’m gonna go with law enforcement.

  16. nakarti says

    If you wish to carry a weapon around for personal or community defense, you should register and train for such use of said weapon.
    If you want to use a military-style semi-automatic rifle with birdshot ammo for pigeon hunting, then you register for pigeon-hunting the same as the guy with the .22cal scoped handgun doing the same.
    If you buy a gun, you should get (and it should be easy to get) a background check.
    These are reasonable regulations for gun ownership.
    Some regressive regulations that push reasonableness:
    Each active gun should be registered with a serial number and muzzle profile (slug fired from said gun) for crime research. And (mixed bag here) should be re-registered annually, similar to a car, (essentially, a gun title.)
    Similar to driving, each gun *user* should be tested and licensed in safe use of guns within a class (eg handgun, rifle, mounted ala car, motorcycle, commercial.) If they fail the test, they are not allowed to purchase ammunition for that class (this is the hard part to implement because of common ammo,) to discourage use, and the weapon confiscated if they are found to be using a class for which they are not licensed. (That is likely only if they do something stupid and/or are reported for it, same as unlicensed drivers.)
    Hobby owners may purchase guns as they wish, but not ammunition.
    Concealed carry should be locally controlled, including property owners having the right to refuse carriers in areas where it is otherwise legal (the same as most locations handle this now.)
    Armed While Intoxicated should have similar penalties to Driving While Intoxicated, to discourage this surprisingly common practice. (Of the people I know who hunt, all of them drink while hunting.)

    This leaves some holes, obviously, but our guns could be at least as safe as our cars.

  17. =8)-DX says

    I’ve only cursorily studied this in discussions on blogs or videos on various legal cases surrounding the US 2nd A., but even I can see this is bullshit. No one (or almost no one) is saying what the OP thinks they’re saying.

    From a European standpoint I think some basic regulation and enforcement of background checks and licensing should be required, but much more importantly, the US would benefit from jettisoning its gun culture in general. A society where gun-ownership is basically a hobby, for sports or hunting and the vast majority of people don’t own guns, is a much safer society.

    Of course teaching our children pacifism and peaceful resistance in general is a good idea.

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