Reassessing the Second Amendment


To say that we have an issue with guns in this country is to make the understatement of the year.  At the risk of being labeled as “one of those liberals who want to take all the guns away,” I believe it is time to reassess the Second Amendment.

I am not a Constitutional literalist, the Founders clearly left us with a mechanism to change the Constitution and we have used that mechanism where we later decided that the founders had not gotten things quite right the first time, for example with slavery, the indirect election of Senators and women being denied the vote.  So, the Constitution is not sacrosanct, it can be altered and changed  — even the Bill of Rights.

That being said, I am a big fan of the Constitution and the Bill of Rights and would agree that any changes have to be made carefully, thoughtfully and democratically.  The other thing that has to be said is that no right, Constitutional or otherwise, is absolute.  Famously, the First Amendment does not protect my “right” to yell “Fire!” in a crowded theater.  Individual rights are balanced by the rights of others.

With that in mind, here is my reassessment of the Second.

The first thing that we have to look at is: What is the actual purpose of the Amendment?  Like the other items in the Bill of Rights it must be there to provide protections from government “tyranny” (Where, of course we have another defintional issue).

So, it does not protect the “right” to hunt.  They would have said: “Hunting, being necessary to feeding of a free people…” but they did not say that.   It also does not seem to be about self protection, if so it would say: “The police, not being able to be everywhere…” which it also does not say.  So, what do guns have to do with government tyranny?

Some historians say that the “Well ordered militia” clause means that the government should not keep a standing, professional army as that army could be ordered by a despot to institute and enforce a dictatorship.  A citizen army would be less likely to fire on its neighbors.  Another school of thought, taken from Jefferson’s comment that the tree of liberty is to be watered from time to time with the blood of patriots, is that an people armed could rise up against any despot that came to power.  Either of these reasons have little to do with our modern National Rifle Association and its defense of the Second Amendment.

In Minneapolis, the first accounts of the shooting seemed to indicate that the officer shot Castile after being informed that Castile was carrying a firearm.  If so, this is what the NRA should be up in arms about.  For example, it might be that net neutrality might have some theoretical First Amendment impact, if police raided my house because I blog on this site, that is a direct affront to the First Amendment.  The same way for the NRA.  A law limiting the number of bullets in a magazine is one thing, but police shooting someone for carrying a gun is a direct affront of gun rights.  So where is the NRA outrage?

Talking about Dallas is even a more tender issue, but I feel I must go there.  Let me make a devil’s advocate argument here.  IF police are acting “tyrannically” towards people of color in American cities and IF the political process is not effective in changing that, then according to NRA logic, the shooter in Dallas was using his Second Amendment rights in the just way Jefferson intended.  Is this not the logic of the Bundys that the right wing defended, like in this article?  Something like, when the government tramples on my rights we will respond with guns.  Dallas is what that looks like in practice.

Which is why I say it is time to consign the Second Amendment to the dustbin of history.

In modern democracies, we do not need the threat of violence to ensure change in our political system.  Black Lives Matter is a non-violent movement and that is the only way they will succeed.  Accomplishing political change at the point of a gun is the logic of ISIS, not modern democracies.

Dallas also seemed to show that even the “self protection” possibility of the usefulness of the Second Amendment is also fallacious.

According to the Dallas Mayor, Mike Rawlings, a number of open carry advocates were attending the peaceful Black Lives Matter rally when the shooting began.  Like everyone else, those armed guys ran.  They did not prevent or stop the actual shooting.  But they did cause problems for the police because it was certainly possible that anyone with a gun was a part of the problem.  So, police spent time chasing down innocent people and trying to figure out which side they were on.  This adds to the problem, it doesn’t solve anything.

Guns, per se, no longer prevent tyranny.  The idea that citizens could somehow compete with a professional army is clearly ludicrous.  An AR-15 versus a drone?  Get serious.

Allowing armed groups or people,  be they the Bundys, ISIS or those who feel they are fighting police tyranny, to use guns as part of their political arsenal is not democracy, it is terrorism, pure and simple.

I think it is time to scrap the Second Amendment.

Now that is not to say that we need to eliminate guns, certainly guns have legitimate purposes, hunting and home defense certainly.  But the idea that guns are some kind of human right, that they have some sort of political purpose, that violence is a legitimate political act,  is an idea whose time has passed.

 

 

Comments

    • EnlightenmentLiberal says

      Interesting reading. I had just finished reading this: The Second Amendment was ratified to preserve slavery.

      Puts a whole new light on that 2nd amendment.

      Which is bullshit. It’s like saying that the civil war was not about slavery.

      I can respect the OP’s position. However, what you just wrote is historical revisionism on the scale of the work of David Barton.

      For further reading, I strongly suggest my google doc that I’ve compiled on this issue, with a multitude of historical primary sources.
      https://docs.google.com/document/d/1Ak6bx8jyDxIlsLuFHHevw-4RQ7R5vJb15RtTNG5d79w/edit

  1. says

    This is a repost of my own comment from elsewhere:

    ———————————————————————-

    Speaking as neither an American nor a legal expert….

    The first and second amendments in the US’s “bill of rights” were approved on the same day in 1789. Both were written with the intent and definition of words in the eighteenth century, not definitions of the twentieth or twenty first. Any interpretation should be based on the definitions intended by the writers, none of this “depends on what the meaning of ‘is’ is” mentality used today to rationalize anything.

    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.

    second amendment: 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.

    In the first amendment, “respecting” means “with regard to”, not “reverence of religion” as far right theocrats take it to mean. The meaning of the word has intentionally been misconstrued to use government to promote religion rather than keeping its hands off.

    The same goes for the second amendment. No one has ever provided a sound argument for “militia” to refer to anything other than the regular army controlled by the government for national defence. “The people” refers to the nation as a whole, not individuals. Nothing in those words infers that individuals can or should have endless numbers of firearms in their homes. Again, the words have been misconstrued from the writers’ intent.

    • inquisitiveraven says

      *cough* *cough* Language peeve incoming. Word don’t infer anything. People infer things from words. Words imply things.

      Not gonna argue with the sense of what you’re saying. That meaning of “respecting” works just as well today as it did then. In fact, I’d say that reading “respecting” as “reverence of” is nonsensical in context.

    • Mike HAneberry says

      Left0ver1under,
      The fact that a well-regulated militia is asserted to be necessary to the security of a free state does not limit “the right of the people to keep and bear arms”. That right existed aside from the second amendment and the text of the amendment places no qualifier on that right. The purpose of the prefatory clause of the second amendment cannot be to qualify the right of the people to keep and bear arms because absolute construction does not modify the subject of the main clause. Instead the purpose of the prefatory clause is to provide a rationale (or purpose) for the non-infringement of the right. Providing a rationale for the action which takes place in the independent clause is the normal function of absolute construction,

      Also the “Endorsement of religion” nonsense did not come from the political right. In 1A, “respecting” does indeed mean “regarding” so we are in agreement on that narrow point, but you seem not to understand the larger debate surrounding 1A and religion.

    • kwolking says

      Your position that “the people” refers to the whole nation is inconsistent with its clear meaning in other amendments. The right of “the people” to peaceably assemble can only apply to individuals. It is absurd to think that we can only assemble if the entire nation does it. The Posse Comitatus Act was passed to specifically limit the powers of the military to act against citizens, which shows that under the law, the army and the people are separate things.

      @Menyambal, #3 Any interpretation of any of the amendments based upon the placement of the commas is specious. The various copies of the Bill of Rights sent to the states had the commas in different places. The rules of punctuation were a little loosy-goosy back then.

    • EnlightenmentLiberal says

      To left0ver1under

      No one has ever provided a sound argument for “militia” to refer to anything other than the regular army controlled by the government for national defence.

      If you are a US citizen, male, between 17 and 45, and able-bodied, then you are already a member of the national militia, as defined by current federal law.
      https://www.law.cornell.edu/uscode/text/10/311

      The word “militia” historically has meant the whole national population in the context of a military fighting force. The distinction between “militia” and “army” is that members of the militia have day jobs apart from military service. They are part-time soldiers. Whereas, an army is composed of soldiers where soldiering is their day job. An army is professional soldiers. A militia is everyone else, a group of rag-tag wanna-be soldiers.

      The meaning of the word “militia”, and the phrase “well regulated militia” are also readily apparent from The Federalist Papers #29 and #46.

      For further reading, I strongly suggest my google doc that I’ve compiled on this issue, with a multitude of historical primary sources.
      https://docs.google.com/document/d/1Ak6bx8jyDxIlsLuFHHevw-4RQ7R5vJb15RtTNG5d79w/edit

  2. Menyambal says

    In the Second Amendment, the word “regulated” meant “trained”. “Well-regulated” meant “well-trained”, as it would now be said. It actually means closer to “working like clockwork”, as some clocks of the time were “Regulator” brand, and the fighting techniques of time involved close-order drill and muzzle-loading muskets fired simultaneously from a tight formation. An army or militia needed lots of practice in formation marching and in the many steps of loading a musket. They had to be able to move like clockwork while under fire. It took drill and practice and drill again, while an officer stood by timing the maneuvers and demanding more speed, more smoothness and more shots per minute. Nowadays, recruits get some formation marching practice, as a vestige of that time, but it is of no use on a battlefield – back then, it was of primary importance, it was necessary to the defense of a nation.

    Some folks argue that the intent of the Second was to have a populace that was familiar with guns so as to save training time. Well, that’s kind of right, in that the militia was to be familiar with guns, and the militia was the training time. But it wasn’t just guns, it was the formation fighting unit. People didn’t learn that from hunting, they learned it from serving in the militia, which was mostly practice and practice and drill until it worked like clockwork.

    Part of militia practice was loading the guns, and a militia can’t practice loading guns if it doesn’t have guns. The people of the militia had to keep the guns to practice with, not leave them in some armory until a war started – they had to keep them.

    The people didn’t have to own the guns, mind. The body of the Constitution and the militia acts make it clear that the military-grade muskets were supplied by the state. (There was a method where militia-men could have a mil-spec musket built, and take it off their taxes, but they had six months to do that, and it was a means of distributing musket-making to local gunsmiths, as there was no mass production at that time.)

    So a well-trained militia required the people keep guns for training. A free nation required a militia.

    As noted in part of the OP, an army could be controlled by the government. Mercenary armies had fought against America’s freedom. The body of the Constitution forbids paying an army for more than two years, and that is all that is said about an army (the navy gets details, and the militia more, but an army is not to be done – so guess what we have now). A militia, a good militia, was the people’s army. It was their right.

    Here’s anothe way to look at the Second. Break it up into clauses by the commas, and leave one or two out at a time. It can easily be read to say that a militia shall not be abridged, with “the right of the people” being the militia. Reading it the NRA way involves ignoring the commas, and ignoring history, and ignoring the deaths of a lot of people.

    The militia was intended to suppress insurrections, not to be a means of insurrection. It’s insurance against tyranny was that it was the people’s army, and the people were the government. If it ever became necessary for the people to take up arms against the government, the nation had already failed.

    • EnlightenmentLiberal says

      The people didn’t have to own the guns, mind. The body of the Constitution and the militia acts make it clear that the military-grade muskets were supplied by the state.

      False. Most of the weapons of the militia under the second federal militia act of 1792 were privately owned and maintained.

      Here is how I know otherwise. 2 sources:

      Citing the court case: Commonwealth v Stephen Annis. Massachusetts. Year 1812. This court decision can found in the following book: Title: “Reports of Cases Argued and Determined in the Supreme Judicial Court Of the Commonwealth Of Massachusetts.” Volume XI. Book Compiler: Dudley Atkins Tyng, Esq. Internal page number: 31. https://books.google.com/books/about/Reports_of_Cases_Argued_and_Determined_i.html?id=qbJJAAAAYAAJ

      Citing the American State Papers. Military Affairs. Volume 1. 1789 – 1819. Year 1812. Number 198. Article Title: “No. 62” “The Militia”. http://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=016/llsp016.db&Page=198

      That, by the laws of the United States, each citizen enrolled in the militia is put under obligations to provide himself with a good musket or rifle, and all the other military equipments prescribed by law. From the best estimate which the committee have been able to form, there is upwards of 250,000 fire arms and rifles in the hands of the militia, which have, a few instances excepted, been provided by, and are the property of, the individuals who hold them.

      […]

      There are several State magazines of fire arms, but the amount of the number of stands has not been ascertained. There are in the magazines of the United States about 120,000 firearms and rifles fit for use, and about 12,000 which need repairs.

      The militia was intended to suppress insurrections, not to be a means of insurrection. It’s insurance against tyranny was that it was the people’s army, and the people were the government. If it ever became necessary for the people to take up arms against the government, the nation had already failed.

      I don’t understand what difference that you are trying to draw. To take up arms against the government, that is an insurrection. Might I remind you that the founders’ generation just did a violent revolution through force of arms against the internationally recognized government. Today, if that happened, they would be called terrorists, and compared to ISIS.

      An armed population, aka a well regulated militia, was intended both to suppress insurrections and to enable insurrections. For one example:
      http://en.wikisource.org/wiki/The_Federalist_Papers/No._46
      Quoting:

      The only refuge left for those who prophesy the downfall of the State Governments is the visionary supposition that the Fœderal Government may previously accumulate a military force for the projects of ambition. […] Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the Fœderal Government; still it would not be going too far to say, that the State Governments, with the People on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by Governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the People of almost every other nation, the existence of subordinate Governments, to which the People are attached, and by which the militia officers are appointed, forms a barrier, against the enterprises of ambition, more insurmountable than any which a simple Government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the Governments are afraid to trust the People with arms. And it is not certain, that with this aid alone, they would not be able to shake off their yokes. But were the People to possess the additional advantages of local Governments chosen by themselves, who could collect the National will, and direct the National force, and of officers appointed out of the militia, by these Governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition, that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

      I have several additional primary quotes from foundational figures in my google doc, such as from James Madison, the father of the constitution, and George Mason, the father of the bill of rights, during debates in the Virginia state legislature over ratification of the federal constitution.

      For further reading, I strongly suggest my google doc that I’ve compiled on this issue, with a multitude of historical primary sources.
      https://docs.google.com/document/d/1Ak6bx8jyDxIlsLuFHHevw-4RQ7R5vJb15RtTNG5d79w/edit

      Regarding your arguments that the federal second militia act of 1792, and the federal second amendment, were about training. That’s just wrong. In the Federalist Paper 29, it advocates for the a law that would become the second federal militia act of 1792. It argues that trying to train the whole population in war is a bad idea, and that the only reason to have once or twice per year militia training sessions is purely to ensure that the individual members of the militia have properly armed themselves as would be required by law, and as was later required by the second federal militia act of 1792 and supporting state laws.

      http://en.wikisource.org/wiki/The_Federalist_Papers/No._29
      Quoting:

      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. […] 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.

      Again, training is not the purpose of the second federal militia act of 1792. Seeing that the militia is armed, that is the purpose of the act.

  3. RationalismRules says

    certainly guns have legitimate purposes, hunting and home defense certainly

    Why ‘certainly’ for home defence? Plenty of countries don’t accept killing an intruder as legitimate defence of property.
    The notion that a gun can be used ‘for defense’ seems to me one of the most universally accepted false ideas perpetuating gun culture. Unless you have the ability to shoot the weapon out of your assailant’s hand, then what you are holding is an offensive weapon, nothing else.

    • Midwest Humanist says

      I do see your point and from a practical standpoint, I agree with you. Personally, I think guns are just a disaster waiting to happen. However, there is an argument that the founding fathers did mean for people to provide protection where the police could not always be, and for me that would only be the home. But again from a practical standpoint, who is a homeowner most likely to shoot? Another member of the household.

  4. Menyambal says

    A reflection on guns as home defense:

    Killing somebody for trying to steal your TV is excessive. The only time it would be justified to kill a home intruder is if they were planning to kill your whole family.

    Yes, your home is your castle, but you are not a king, you are a citizen of a democracy. I can argue that you should let the crime happen, and let the law take its course. If that makes you unhappy, move to Russia, or stay here and change the laws. (Which change we could argue has already taken place.)

    I could even argue that if someone is committing a smaller crime, and threatening death, you should get yourself killed so that they are wanted for murder, and are more likely to be caught. That could be said to be your duty.

    Those may sound odd, but it is no stranger than killing a person for walking on your lawn.

    • Midwest Humanist says

      I agree with you, but I can also see that an intruder in the home can be a mortal danger in a way that trespassing on the lawn is not.

      • EnlightenmentLiberal says

        That is not actually clear.

        It’s extremely clear. See my posts elsethread (assuming they get past moderation, I hope they do).

        And the Constitution can be changed. It has been before.

        Indeed. And then a gun ban could be constitutional.

  5. alkaloid says

    @menyambal, #5:

    “I could even argue that if someone is committing a smaller crime, and threatening death, you should get yourself killed so that they are wanted for murder, and are more likely to be caught. That could be said to be your duty.”

    I fail completely to see how letting yourself get killed pointlessly is a moral act.

    I also think that this statement is not valid: “Accomplishing political change at the point of a gun is the logic of ISIS, not modern democracies.” The United States has overthrown directly or used intermediaries (ie coups) hundreds of different governments since WWII. While you can say these acts were destructive I don’t think that you can claim that they didn’t happen.

    • Midwest Humanist says

      I agree with you that the US government has done that, but they are undemocratic and certainly contribute to the rise of groups like ISIS. I agree with you that the morality is just the same.

  6. brucegee1962 says

    Next time I hear anyone say “We need the 2nd Amendment in order to overthrow the government if it becomes tyrannical,” I intend to ask them what they think about the Dallas and Baton Rouge police shooters. That is what a person who uses guns to take down a tyrannical government looks like. If you’re against people randomly shooting police, then you CANNOT use this gun defense.

    I’ll go further. For everyone who says “Blue lives matter” (including the Donald): you CANNOT say you wish to support police safety, while at the same time opposing gun regulation.

    The same thing is true of Black Lives Matter. If the police weren’t so jittery and imagining everyone has a gun in their pockets, they wouldn’t be so trigger happy. Racism is the icing, but fear of guns is the cake.

  7. says

    Enlightenment Liberal and Midwest Humanist, no government officials in the U.S. have the right to deny law-abiding citizens their Constitutionally guaranteed right to keep and bear arms. Gun bans violate the 2nd Amendment. Less guns=less crime-bullshit!

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