The Second Amendment: An historical perspective
There are many myths that have found their way into "the American Story." Some were tall tales to begin with, like Pocahontas or George Washington and the cherry tree. Some were twisted versions of real events like the Boston Tea Party. And, some have been shaped and in some cases, distorted, to advance political goals.
The Second Amendment is one example. It reads: "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." 27 words. A bit ungrammatical, even for back in the 1790s. First thing to be done other than criticize the grammar is to take a close look at the key words in their 1791 context.
Well-regulated is an adjective to describe something controlled or supervised to conform to rules, regulations, tradition, etc. Militia is from Latin militia for miles soldier (military service). In the 1580s, it meant "system of military discipline." In the 1690s it meant "citizen army" as distinct from professional soldiers. For what it meant in the 1790s, I refer you to the 1st and 2nd Militia Acts of 1792 in which militias are addressed as state and local militia companies, not individuals.
And, then of course there's that pesky ol' Constitution itself. Specifically Article 1, Section 8: "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"
"The right of the people." This particular phrase is used in two other places in the Bill of Rights — The First and the Fourth. The First deals with keeping religion out of government and giving everyone the legal right to spout absolute garbage. The Fourth deals with probable cause, search warrants and the like.
With both of these amendments, there are limitations. Speech may be free, but not if it's libelous or inflames violence. And, if you think that you are immune from warrantless searches and seizures, you haven't been paying attention the last 15 years. For instance, the IRS can read your email without a warrant if it's stored in "the cloud" or if it's in your computer over 180 days.
Still, gun fanatics seem to think their beloved Second Amendment is exempt from any type of restrictions.
"Necessary to the security of a free State." In the 1790s context, does the word "state" refer to geography such as Virginia or the U.S. or does it refer to the population? Neither. It refers to government, as in "The State." Those Militia Acts were set up to deal with situations like the Shays Rebellion and the Whiskey Rebellion.
"Arms." When the Second Amendment was ratified in 1791, the weapons available to the military were the same weapons available to the general population. Revolutionary rifles In fact, almost all of the weapons used by the colonists in the Revolutionary War were theirs. In Colonial days, a rifle was an essential piece of farm equipment. Also, you needed rifles to fight off Native Americans, many of whom had the audacious idea that this was their land and the white men were all illegal immigrants.
Now, this may come as a shock to many people, but it's not the 1700s any more, and civilian and military weaponry aren't equivalent any more. Plus, I could be wrong, but I don't think the Founding Father's ever envisioned 650-rounds-per-minute weapons or 100-cartridge ammo clips, so saying that they would approve of the indiscriminate private ownership of firearms leaves a large gaping hole in logic.
"Shall not be infringed." Viewed in the context of 1181 through 1792, this makes perfect sense. In the context of 2013, it is absolutely ludicrous. Citizen militias were supposed to be for the protection of the government against armed rebellions. This was essentially a continuation of English law dating back to the Assize of Arms of 1181.
Remember, that in the 1790s, the country wasn't too firmly implanted yet. Plus, there had been a number of rebellions in the recent past such as the aforementioned Shays and Whiskey, as well as the Negro Plot of 1741, the War of the Regulation, the Pennsylvania Mutiny of 1783, and the Frie's Rebellion.
The Second Amendment isn't there to protect the people from the government, it was placed there to protect the government from the people.
The government needed men in arms, but couldn't afford to pay for too many of them because of major financial problems. The solution was simple: Let civilians join organized militias and pay for their own weapons. So, it made a great deal of sense to insert wording forbidding infringements. Otherwise, you could end up with a weaponless militia and what good were those to the state?
Lastly, the stated purpose for the Second Amendment ("being necessary to the security of a free State") no longer exists. The U.S. military can defend the country from enemies both foreign and domestic quite nicely.
As "proof" of their Second Amendment misinterpretation, the National Rifle Association often cites District of Columbia v. Heller, but the Supreme Court is not infallible (Bush v. Gore; McConnell v. FEC; Hamdi v. Rumsfeld; Citizen's United v. FEC). But, as the Constitution would have it, the court is the final say in what's "constitutional" and what isn't. And in 2008, for the first time in 70 years, the court ruled on gun ownership rights. And, in my opinion, they blew it.
According to the Supreme Court, the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home. Just exactly where does the Constitution say that? Or is that just an example of justification trumping evidence?
It is entirely possible that Heller will have a short shelf life. Bad Supreme Court decisions do have a habit of being reversed in part or in full. The original decision was 5 to 4. Due to various reasons including demographics and the Republican Party's incredible ability to shoot in the foot, we've probably seen the last Republican president for the foreseeable future. It may take a while, but as the justices retire or die, the court will eventually shift back to the middle. The loss of just one would probably be sufficient to allow a Heller reversal stemming from a new case.
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