A while ago I saw a tagline on alt.fan.cecil-adams from someone who was darn proud to be a member of the National Rifle Association. I asked if the Second Amendment to the U.S. Constitution still holds water today since the intent was to provide guns and protection against the other side of the puddle. This sparked a huge debate on the Net about the right to bear arms with, as usual, both sides claiming they are right. I figured it's time to take it to the top and ask you to settle it all for us. Is it time to reevaluate the Second Amendment? If only so that those who argue can at least now argue an up-to-date amendment?
Illustration by Slug Signorino
You mean well, Colin, but you couldn’t write a proper question to save your soul. What you want to know is what the framers of the Bill of Rights intended the Second Amendment to mean, and whether that intention has any continuing legal relevance in view of the (supposedly) dramatically altered social landscape upon which we gaze today. The answer to the second question is easy: yes, else why have a Constitution? But the answer to the first is knottier.
Historically there have been two interpretations of the Second Amendment: the states-rights argument and the individual-rights argument. The states-rights view is that the Second Amendment merely guarantees the states the right to organize militias and citizens the right to join. (Militia here means any armed force raised for the common defense, not just the national guard.) The individual-rights view is that the Second Amendment means what it says: citizens have the right to keep and bear arms. The states-rights view currently prevails in federal case law, but the individual-rights view is probably closer to the framers’ intent. A reasonable restatement of the amendment might go something like this: “Since we as a nation have found it necessary to organize citizen militias to defend against tyranny and may be compelled to do so again, and since these militias are necessarily composed of volunteers supplying their own weapons, the right of individuals to keep and bear arms shall not be infringed.”
OK, some gun-control advocates will concede, but that merely means infringed by the federal government. As an article in Mother Jones put it, “The legal precedents are clear: Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited.”
This is a crock. The legal precedents are far from clear. They’re also pathetically sparse, suggesting a reluctance on the part of the courts and the legal community generally to deal with the issue. (An enlightening article in the Yale Law Journal a few years ago was titled “The Embarrassing Second Amendment.”) In almost every other aspect of law the Bill of Rights has been broadly construed to restrain the states as well as the federal government. Few today would argue that states can abrogate the right to free speech guaranteed by the First Amendment. Yet many are prepared to let them gut the second, on the grounds that the framers didn’t foresee urban violence on the scale we face now. Maybe they didn’t, but so what? Civil-liberties advocates don’t accept urban violence as an excuse to curtail other constitutional rights, such as the protection against unlawful search and seizure.
Accepting the Second Amendment at face value doesn’t mean you can’t regulate gun ownership. No one can argue plausibly that the authors of the Bill of Rights meant to make the authorities powerless to disarm criminals. The framers likely would have objected to a blanket proscription of handguns, which they would have seen as legitimate weapons of self-defense, and arguably they would have opposed a ban on assault rifles, the AK-47 being to today’s oppressed what the long rifle was to those of 1776. But local gun registration presents no obvious constitutional problems. Criminals don’t register guns, of course; that’s the point. Arrest a carful of mopes with guns and no permits and you have a good ipso facto case for throwing the book at them. How much better to approach gun control on a reasonable basis rather than make a religious war out of it.
Taking another shot
Why is it that you, as well as the NRA, have different copies of the United States Constitution from my own? The Second Amendment in my own library clearly starts out with the words “A well-regulated militia …” What is well-regulated about a private citizen with a stash of guns in his basement? The opening words of this amendment seem to clearly indicate that the possession of guns was not meant to be beyond control.
Let’s put it this way: it wasn’t meant to be beyond regulation. The question is whether the power to regulate encompasses the power to ban. So far as guns are concerned, the courts have held that it does. You may say outlawing guns altogether wasn’t what you had in mind. But it’s certainly what some people have in mind, at least with respect to broad categories of firearms such as handguns, and a few would happily prohibit guns, period. Federal case law currently offers virtually no protection against such draconian measures.
Put yourself in a gun owner’s shoes. While the first half of the Second Amendment is no miracle of clarity, the second half is about as plain as it can be: “The right of the people to keep and bear arms shall not be infringed.” But gun-control advocates deny this sentence means what it seems perfectly evident it says, and the courts have backed them up. Gun owners’ recognition that one of their most cherished rights has been interpreted out of existence accounts for the apocalyptic tone in which their arguments are often framed.
But let’s get back to “well-regulated.” A number of serious scholars have disputed the idea that this phrase necessarily means “subject to a lot of regulations.” The historian Robert Shalhope, for example, makes a good case that for the framers it meant “duly constituted” — that is, subject to civilian authority. The framers, in other words, didn’t propose to have armed gangs of self-appointed militiamen roaming the streets. Some take Shalhope’s argument a step further and say that “well-regulated” applies only to the militia and doesn’t constrain an individual’s right to keep and bear arms in any way.
A more reasonable interpretation, however, is that if the government can regulate the militia it can regulate the individuals in it, provided it does so in a way that doesn’t make a shambles of their basic Second Amendment rights. For that reason I think even if the amendment had been interpreted more in line with the framers’ intent, the regulatory landscape wouldn’t necessarily look a lot different from the way it does now. But it’s silly to think the framers would guarantee a right in one half of the Second Amendment only to allow the government to unguarantee it in the other half.
However odd the notion strikes us today, the framers regarded private gun ownership as one of the pillars of their liberty. They’d recently defeated one of the most powerful nations in the world using an army that in the early going had consisted of amateur soldiers using their own weapons. They considered these citizen militias vastly preferable to standing armies, which in their experience had been instruments of oppression. They also had no professional police force upon which to depend for defense of their lives and property. It seemed natural to them that ordinary folk should have the right to own guns.
That was then, you may say, and this is now. In the 1990s it may well be foolish, as a matter of public policy, to allow law-abiding private citizens to own guns (although I’m not persuaded this is so). But it seems pretty clear that’s what the founders intended, and it eats at the heart of the constitutional process to simply wave that right away. No one doubts today that slavery is bad, but the constitution as written permitted it, and a duly ratified amendment was required to put the matter right. Likewise we should concede that the Second Amendment means what it seems to mean and that if we want to control guns to the point of prohibition, amending the amendment is the honest thing to do.
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