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?
Just wonderin’…
11 users commented in " Second Amendment ruminations… "
Follow-up comment rss or Leave a TrackbackFrom a “left of center” gun owner to the cosmic conservative: that was probably one of the most intelligent commentaries on the subject that I have yet to read. I wish I had the answer. As much as I believe that there is no earthly reason for any citizen to possess a firearm capable of delivering 100 rounds in a minute, I don’t know that there is any correlation between outlawing such weapons and the acts of very sick individuals. It’s like just about everything else in a civilized society… the vast majority of people conduct their affairs within an unwritten set of guidelines. It is the small minority that go outside of these guidelines for whom the rules have to be written and enforced. Unfortunately, it is the majority that suffers as a result.
Minnesota, thanks for the kind words, but I’ve read similar commentary even on “gun-nut” sites. People really do think and worry about these things, but the political process in our country has become so polarized that any attempt to address any specific hot-button issue almost immediately becomes “us vs them” and it is hard to do anything about the actual issue because it just becomes leverage for some other cherished political goal.
I consider myself a responsible gun owner. I consider myself to be an ethical hunter. The only reason I could justify owning a weapon capable of shooting 100 rounds in a minute is because I expected to need that sort of firepower in self-defense. There is no rational reason to say such armament is necessary for hunting, target shooting or even pleasure shooting. Sure, you can say “But I enjoy blasting the hell out of things!” But heck, I’d probably enjoy firing artillery rounds, but I can’t do that either.
So that leaves us with the self-defense argument as the only viable argument to “require” such firepower.
I am almost of the opinion that suggesting such firepower is necessary for self-defense is the logical equivalent of saying that our law enforcement agencies have totally failed us.
But if 100 rounds per minute is too much, what is just right? 20? 10? 6?
While hunting a very solid argument could be made that a hunter should be able to fire off six rounds in just a few seconds. Not every shot is perfect, and if a wounded animal attacks the hunter, they should be able to get off additional shots to defend themselves. But 100?
It’s a tough thing to work out. Especially because if guns become unsuited to the task of mass murder, will folks like this Aurora shooter simply resort to making bombs?
Hard to know.
You left out the reason why the 2nd Ammendment was put in. It was to allow the people to protect themselves from a tyrannical government.
In that context, given the firepower of the army, how do you remove the rights of the people to have weapons of that type?
The Aurora shooter put together bombs for his apartment. If he had no access to the weapons he had, which is dubious at best, as he was planning this horror for a while, he almost definitely would have gone with bombs.
The 2nd Ammendment isn’t about being able to go out and hunt, even though that is a side benefit of it. It is about the Brittish wanting to take away firearms from the Colonists, and thereby making them compliant.
It is all about having a means to retain power in the people over government.
Jus, I think I did cover the purpose of the 2nd amendment as keeping the government in fear of the righteous anger of the people. But the fact is that was NOT the sole reason for the amendment. If you read through the writings of the founders, and look through the history of the militia, the ability of the government to be able to call up an army of trained users of firearms on short notice was at least as important as the deterrent effect on a tyrannical government. And the militia angle was the only angle to actually be codified into actual law.
So while I’m a big fan of the “deterrent to a tyrannical government” argument, I also am well aware of the limitations of that argument.
My point in asking the question near the end of my post was to see if people thought that such weapons as used in this case actually provide any deterrent to a government which can deploy exponentially greater firepower if necessary.
I’m not sure it has any real deterrent value anymore. Maybe it does from an emotional sense, but not in terms of real fear of the people storming Washington. Such an effort would be crushed immediately by the army we have today.
It is far more likely that the government fears the actual army than that they fear the citizens.
The whole problem with interpreting the Constitution is that it must be interpreted over and over again because, no matter what interpretation we come up with at any given time, ultimately, that’s exactly what it is – an interpretation.
The Constitution, by the very fact that it must be constantly interpreted by the reader – every reader – every time she reads it – makes it what the liberals call it – a “living document.”
While the opening clause has essentially been “read out” of the document by some interpretations of SCOTUS, that doesn’t mean that they were right, nor does that mean that their earlier opinions will forever stand. And, if/when said re-interpretation occurs, it will be no more and no less legitimate than the earlier ones and will be no more and no less a reflection of the times in which the interpretation occurs than any other.
That being said…
The text of the 2nd which you cite above is incorrect. The actual text is: “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.”
Commas have meaning. Normally, setting off the clause as they did would indicate that the clause both modifies “militia” and is subordinate – perhaps even superfluous. Whatever. It CAN’T BE IGNORED. The framers put it there for a reason. It has meaning and is intended to have effect.
The problem I have with most of SCOTUS’s interpretations is that they seem to ignore the actual LANGUAGE of the document. It is the language ALONE which obtains. When there is a question about what the language MEANS – then we can start “interpreting” it. But, when we do, it is necessary to use KNOWN and CONSISTENT rules of interpretation.
We don’t. And, as long as Presidents are allowed to put political hacks on the bench, we never will.
It is interrsting that you mention that comma. I believe the comma was in the original, but was removed in the version actually ratified, so there is actually a lot of debate about that comma and if its exclusion was deliberate or just a transcribing error. If you put that much weight on it, maybe it was a deliberate exclusion. Still, since the militia was abandoned for all intents and purposes after the War of 1812, I personally think the comma is irrelevant, along with the rest of the militia clause.
Comma’s still there. Without the comma, the PURPOSE of the militia is no longer in a subordinate clause and CANNOT be “ignored.” The framers were, like most aristocrats of their time, highly educated. The inclusion of the comma and its placement were CONSIDERED events.
And, that has been Scalia’s point throughout his tenure, i.e., that we need to read the TEXT of the document, using the rules of grammar which existed at the time – to understand what the document meant at the time. Where I diverge from Scalia and others is that I don’t give a thought to “framers’ intent,” but to the intent of those who RATIFIED the document representing the people who selected/elected them to represent them.
But, to say that we should simply “ignore” words in the Constitution which are CLEARLY THERE and were INTENTIONALLY put there for a REASON and were meant to have an EFFECT is just as bad as Blackmun putting words INTO the Constitution which are NOT there.
Sigh.
To put it more simply: The whole “militia” language is there to explain the REASON FOR THE AMENDMENT.
If you simply ignore the REASON FOR THE AMENDMENT, then you can attribute any other reason for it or, I guess, interpret it any which way you desire.
I believe the comma is still in dispute, but I am not in a place where I can go research right now.
If you take the militia to be the reason for the amendment, do you then feel in the lack of a militia there is no right to bear arms? Or do you argue the militia should still exist? Or do you feel all or some branch of the modern military serves the same constitutional purpose?
I actually do take precedent as being important too. So rulings which have supported the 2nd amndmt without referencing the militia carry plenty of legel weight with me.
Precedent is meaningless. A wrong opinion is a wrong opinion and should be corrected as soon as possible giving NO effect to precedent.
Again, the problem is twofold: 1) Selecting political hacks as Justices, and 2) Not having a consistent method of interpreting the Constitution.
First, who says there’s no “militia?” Then, it was the able bodied men of the individual states to be called up as necessary, when necessary – by the states (ultimately the federal government by default upon ratification). We still have that.
Second, as to the purpose – they are necessary to the “security of a free state.” Security from whom isn’t withing the document. It was argued as has been set forth hereinabove. (And, if you don’t think small arms can be used against tanks – look at the Middle East…)
This is a troublesome amendment in terms of how to interpret it. What does “bear” mean? What does “arms” mean. Do we “freeze” it in time, or do we extrapolate from then to now? Dunno, but we have the right to “bear” some kind of “arms.” The REASON for the right is stated but is UNNECESSARY to the continued FACT of it. The FACT of that right remains even though the REASON may may have been diminished or extinguished.
By the way, my memory was fuzzy yesterday due to some other issues clouding my mind. The comma controversy is due to the fact that there are two versions of the Amendment, one passed by Congress (with the comma) and one ratified by the states (without the comma).
I suppose, technically, that means it never actually was approved since congress and the states approved different versions of the text.
In over 100+ years though, nobody has made an issue of that. So I guess you can pick which version you prefer and call it “the constitutional one”.
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