You know it’s coming. We may as well get it started.
The Second Amendment, in its entirety, 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.”
There are two major areas where these words find vast disagreement among reasonable, intelligent people. First, of course, is the “well regulated militia” preface to the sentence. Many people who don’t bother to investigate history think that “well regulated militia” is some sort of ambiguous phrase that might mean the Army, might mean the National Guard, or might even mean local police. The argument presented by gun control advocates is that the second amendment only means that the police or the armed military should have “arms”.
The problem with this is that the concept of a “well regulated militia” is very clearly defined historically. In fact Congress in the earliest days of the union passed several laws about the “militia.” The whole concept of the militia was a reaction to the new nation’s desire to avoid having “standing armies” which the British Empire of the time utilized extensively. It was legal in the British Empire of the time for the military to simply appropriate homes or businesses for their purposes, and they did so. That was one of the things that built huge resentment in the early colonial patriots like Patrick Henry. So there was a strong desire to not have “standing armies”. However, it was also clear that the nation had to have the ability to raise an army quickly. So the concept of the “well regulated militia” was actually codified in law and included every able bodied man of fighting age. Not only were they ALLOWED to own firearms, they were REQUIRED to own and be familiar with the use of firearms so that when the nation needed them, they could quickly react to hostile invasions or crises.
Now, that entire edifice collapsed by the War of 1812 and the “well regulated militia” was replaced with what is, in effect, a standing army ever since. However the principle of US citizens being expected to own and use firearms was by then deeply ingrained in the social fabric of society, and remained so until the social activism of the 60s, when gun control became yet another “social cause” for activists.
Since the militia system has been completely abandoned, it is actually a reasonable suggestion that the original intent of the second amendment cannot be realized. However, there have been multiple Supreme Court rulings since then that hold up the second part of the amendment even with the first part no longer applicable. So in terms of legal precedent, the “well regulated militia” part of the amendment can be considered to be completely irrelevant.
Which leaves the second important definitional part of the amendment. What exactly does “bear arms” mean?
This is a completely reasonable question too. Since laws banning the ownership of cannons or explosives go back to the dawn of the republic, the “arms” in the second amendment has long been recognized to mean “personal firearms” of the type used in hunting or self-defense. It has never been understood to mean cannons, nuclear weapons, artillery shells, etc.
But if the “arms” in the amendment means “personal firearms” we have to also acknowledge what that meant in the latter part of the 18th century. Although barrel rifling had been invented centuries earlier and was well known by gunsmiths and military experts, rifling a barrel was an extremely costly process and was virtually unheard of in both military and privately owned firearms. At the time of the ratification of the second amendment “arms” meant muskets and flintlock smooth-bore pistols that had to be muzzle-loaded by hand. Guns of this type were notoriously inaccurate and had a fire rate of roughly once or twice per minute, by a well-trained soldier or hunter.
The first “rifles” to enter the general public consciousness were the “Kentucky Rifles” of the Daniel Boone era. While these were far more accurate than the smooth bore muskets of the day, they were still muzzle-loaded and had a low rate of fire.
It wasn’t until the Henry Rifle came out just before the Civil War that mass-produced, lever action, cartridge-based rifles that could shoot a round every second or so become commonplace. The Henry Rifle (and other similar rifles like the Spencer Carbine) were so much more lethal than the muzzle-loaded guns carried by most soldiers that a small company of Union soldiers using the lever-action rifles was able to defeat a much larger Confederate force using muzzle-loaders.
By a decade after the Civil War the Winchester, Henry and Spencer rifles (as well as the Colt revolver) had almost completely replaced the earlier muzzle loaded or cap and ball designs which predated them.
It may not be clear to some non-shooters what a vast difference in lethality a Winchester model ’94 and a Colt .45 is when compared to a muzzle-loaded flintlock smooth-bore musket and pistol. Just in rate of fire alone the Winchester and Colt could deliver up to 20 bullets in less than a minute before needing to reload, a number of bullets that would require half an hour or more with the firearms in existence at the time of the second amendment’s ratification.
But that was only the start of the firearms revolution. By the end of the 19th century the lever action and revolver had become the state of the art in guns technology, but a new design was already beginning to appear in gun factory prototypes. The next advance in technology was the introduction of guns which used the recoil from fired bullets to mechanically advance a new shell into the breech and cock the weapon automatically so that it could be fired again. By the 1920s one of the first mass-produced “automatic weapons” was created in the “Thomas sub-machine gun”. By holding the trigger down a Thomas could fire at a rate of several rounds per second until the magazine was empty or the shooter let off the trigger.
The same technology allowed for weapons to fire, but a catch stopped the next bullet from firing, forcing the shooter to pull the trigger again for another shot. This is known as “semi-automatic” firing and is how most modern military and self-defense handguns and rifles operate. Such weapons will shoot as fast as the shooter can pull the trigger, and if the owner knows a bit about gunsmithing, and is willing to break the law, many can be converted to full automatic fire simply by filing off the catch which forces the shooter to pull the trigger multiple times.
Fully automatic weapons were outlawed almost as soon as they appeared, and such rulings have been upheld by the Supreme Court as constitutional. So there is clearly some limit to the second amendment.
I am a gun enthusiast. I enjoy shooting guns. I don’t happen to own any semi-automatic weapons at this time, but I have been considering purchasing one or more.
The shooter in the Aurora theater last week had three semi-automatic weapons, an AR-15 rifle, a Glock 40 pistol and a 12 gauge shotgun. In less than a minute he was able to kill 12 people and wound over fifty more. And his AR-15 appears to have jammed, which means he could have done even more damage.
I guess the question I have about the second amendment is whether people believe that the founding fathers would have supported the right of individuals to be able to unload that sort of firepower in that short of a time. The guns used in the attack are completely legal guns, anyone who passes a background check could buy them.
Is that too much? Should private ownership of guns have some constraint on the rate of fire the guns can deliver?
It is important to remember that a major factor in the drafting of the second amendment was that the government needed to fear the righteous anger of the people and if the people owned guns, that fear was realistic. But in the modern world with the army using tanks, airplanes, howitzers, artillery, etc. is it realistic that private citizens armed even with the sort of weaponry used in this shooting could present a credible threat to that army? Back in the late 18th century a force of citizens using weapons of the time WAS a legitimate threat. Is it still a threat today?
Would it be reasonable to have the second amendment define some rate-of-fire limitations to privately owned weapons such that it would not be possible for a privately owned gun to legally shoot 100 rounds per minute?