Thursday, April 17, 2014

The Second Amendment

I have no hard data to back this up, but my sense is, if we were to rank the amendments to the Constitution in the order that they have inspired controversy, debate, litigation and indeed anger, the First and Second Amendments would likely be numbers one and two, and I'm not sure in which order.

Last time, we went through the First Amendment and its limitations on both the government ("Congress shall make no law...") and on those who exercise these rights (no yelling "Fire!" in a crowded theater, libel and slander laws, etc...).  I think we can agree that, at least Constitutionally speaking, there are no absolute (that is, no limits whatsoever can be placed on them) rights.  But in order to place any limitations on rights, the government must demonstrate exceptionally compelling reasons for doing so.

That said, let us move on to the Second Amendment and begin with the text:

"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."

Clearly, the amendment protects the right of individuals to have arms for their own private, lawful uses.  Simple enough.  Next topic...

Oh, wait - I see some of you are not convinced.  Well, the Supreme Court sees it this way, as well (Heller and MacDonald decisions - both very recent).  In fact, the Supreme Court really didn't weigh in on the question until the Heller case in 2008, when it ruled that the Second Amendment does protect an individual right to "keep and bear arms".

"But Mr. Madison blogger," you say, "how can that be?  It says right in the amendment 'a well-regulated militia'.  So, doesn't that mean that only people in the National Guard or other military are covered by this?"

I see we have some work to do.  Let's begin with the basics.  First of all, we see that this amendment is in The Bill of Rights.  Remember, that this set of amendments was specifically written to limit the federal government's ability to infringe upon the natural rights of the citizens.  It did NOT grant rights - it protected rights already already understood to be inherent in every citizen.  If the right to keep and bear arms is not an individual right, but some "collective" right, based on membership in the military, it would not need to be in the Bill of Rights, as there is no need to guarantee a right to be armed for someone in the army!

Second, the use of the word "right" in the Constitution is always used in the context of an individual right.  It is never associated with any federal governmental entity or function.  The Founders were quite aware, and wrote their words specifically to show, that only people have rights.  Governments do not.

But what about this whole "militia" business? you ask.  The first clause is what is called a prefatory clause.  It announces a purpose (but not necessarily the sole purpose) of the clause to follow, which is called the operative clause.  In other words, the operative clause by itself ("the right of the people to keep and bear arms shall not be infringed") can stand on its own as a complete thought, but the preceding clause cannot.

But who are "the militia"?  In the context of the time, it generally referred to free males of military service age who could be organized to bear arms for whatever purpose was necessary.  Many of the Founders were leery of a standing army (because of the British experience - and that experience found its way into the next amendment, as well), but they knew there could not be complete lack of armed men in case of emergency (including their own national army turning on them, in an extreme case).  Again, that was a reason for the amendment, but not the sole reason.  Congress already had the power to raise armies (Article One), so there was no reason to add an amendment simply to say "the people" could raise more armies.  In any case, the amendment does not say "The right of the militia to keep and bear arms" - that would be ridiculous - it says "the people".  Remember how precise these men were with their words.

Now, in the spirit of fairness and giving a hearing to other possible interpretations, let us assume for a moment that the national guard reading holds some water.  As a 21-year national guard veteran, I can state categorically that I did not have a right to keep and bear arms as a guardsman.  In fact, I had no right at all to even be IN the guard.  I could have been rejected for service for many reasons, but once in, I still had no right to carry a gun.  I may have had a duty to do so, but a duty is not a right.  Very different concepts.  There are numerous military specialties that do not require the bearing of arms and even a couple that are specifically prohibited from doing so (chaplains, medics).  Remember, too, that as a military member, I am acting as an agent of the government, and as we have already established, governments have no rights, only people do.  There is simply no Constitutional right to bear arms while serving in the military, so once again, that interpretation just doesn't work.

OK, but aren't there - or can't there be - limits?  Of course there can be, and are.  There are more than 20,000 federal, state and local laws dealing with firearms alone (to say nothing of other types of  "arms" like knives, bows, explosives and so on).  Much as I might like to, I can't own a fully-armed M-1 Abrams tank or an A-10 Warthog fighter or a B-52.  Despite what you may have heard in the media, I can't own an actual assault rifle without extensive background checking and special licensing.  Felons and minors aren't allowed to own guns.  Most of these restrictions aren't particularly controversial.

So, then, where does the controversy lie?  Just like in First Amendment issues, the question is not whether the government can place certain restrictions on the rights guaranteed in the amendment, but to what extent.  Where is the line drawn between what lawmakers might say is a compelling government or public interest and the rights of the individual?  Is that line fluid, changing over time?  Who actually gets to determine where that line is - the Congress?  The President?  The Courts?

My sense is that, just like the First Amendment, we have seen nowhere near the end of the controversy surrounding the Second.


  1. Additionally, in colonial times (just prior to and during the Revolutionary War), the "militia" formally in existence consisted of Tories who were loyal to King George and who were intent upon killing rebellious Americans. The framers of the Constitution did NOT intend for the Second Amendment to apply - via the prefatory clause - specifically and only to those Tories. The Anti-Gun Movement tries to deceptively claim that the intent was only for militia, but that is absurd.

  2. Thanks for the insight Chris. Watching the news this weekend, I noticed several Democrats (Hillary people) stating that only the militia has the right to bear arms. I sure that spin appeals to her followers. Any justification to get rid of the scary guns. It stems from a mistrust of the individual and a desire to control. My former boss didn't even want me carrying bear mace around and claimed it was illegal in Canada. I told him that he'd be really happy that I had it if we had a shooter in the building. He didn't say anything else.