Second Amendment: The Militia Vs. The People
After last week's tragedy in Aurora there is, of course, renewed vigor among proponents of gun control (if not outright gun bans), and I'm certain that banning guns will solve the problem of illegal shootings without spawning any unpleasant unintended consequences just as surely as banning drugs solved the problem of drug addiction without spawning any unpleasant unintended consequences. (And if you think the War on Drugs has turned America's inner cities into crime-ridden hellholes, wait until you see what a War on Guns will do.)
There's also been multiple rehashes of the old argument that the second amendment should only apply to members of "a well-regulated militia"; a.k.a. the military or National Guard.
To refresh your memory, here's the actual text of the second amendment:
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.
For those who insist this means that only duly appointed agents of the government (or militias run thereby) have the right to bear arms, I have two questions: one, if the intention of the second amendment was to preserve the government's right to maintain an armed militia, why does it specify that people, rather than militiamen, have the right to bear arms? Any other mention of "people" in the Bill of Rights plainly refers to people, not government organizations.
For that matter, why was this mentioned in the Bill of Rights -- written to safeguard individuals' rights against the government -- rather than in the main body of the constitution? Article 1, section 8 already grants Congress the right to, among other things, "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies" and the right to "[call] forth the militia to execute the laws of the union, suppress insurrections and repel invasions."
Surely nobody thinks Congress intended to wage war, repel invasions or defeat pirates without the use of weapons; any constitutional need for National Guardsmen to bear arms is included in Article 1, section 8. So, then, what is the purpose of the second amendment? To remind us that, since the government already has the right to bear arms -- indeed, the need to bear arms, the need to have a military and a national guard -- well, since the State must maintain a well-regulated Militia to ensure its own security, it's vitally important that the right of the people to keep and bear arms not be infringed, lest the State be the only ones allowed to bear arms at all. The writers of the constitution had recently finished fighting a war to preserve the rights of individuals (well, some individuals) against an obtrusive government, and added the Bill of Rights to preserve the rights of individuals against the government, not to grant the government additional power to wield over individuals.
There's also been multiple rehashes of the old argument that the second amendment should only apply to members of "a well-regulated militia"; a.k.a. the military or National Guard.
To refresh your memory, here's the actual text of the second amendment:
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.
For those who insist this means that only duly appointed agents of the government (or militias run thereby) have the right to bear arms, I have two questions: one, if the intention of the second amendment was to preserve the government's right to maintain an armed militia, why does it specify that people, rather than militiamen, have the right to bear arms? Any other mention of "people" in the Bill of Rights plainly refers to people, not government organizations.
For that matter, why was this mentioned in the Bill of Rights -- written to safeguard individuals' rights against the government -- rather than in the main body of the constitution? Article 1, section 8 already grants Congress the right to, among other things, "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies" and the right to "[call] forth the militia to execute the laws of the union, suppress insurrections and repel invasions."
Surely nobody thinks Congress intended to wage war, repel invasions or defeat pirates without the use of weapons; any constitutional need for National Guardsmen to bear arms is included in Article 1, section 8. So, then, what is the purpose of the second amendment? To remind us that, since the government already has the right to bear arms -- indeed, the need to bear arms, the need to have a military and a national guard -- well, since the State must maintain a well-regulated Militia to ensure its own security, it's vitally important that the right of the people to keep and bear arms not be infringed, lest the State be the only ones allowed to bear arms at all. The writers of the constitution had recently finished fighting a war to preserve the rights of individuals (well, some individuals) against an obtrusive government, and added the Bill of Rights to preserve the rights of individuals against the government, not to grant the government additional power to wield over individuals.
posted by Jennifer Abel at 10:19 AM
7 Comments:
Well said.
... Hobbit
I remember seeing a bunch of people retweeting Jason Alexander's rant about banning the AR15. He goes on about how 'You have to be in a militia' and quotes Adams saying that to have the plebes train for the militia is impractical. Adams was also quoted suggesting that we may need to go back to a monarchy and the like, so take his stuff with a grain of salt, anyway.
But this is the best argument against that interpretation. Why, indeed, would a government already empowered to keep a militia simultaneously need to protect the rights of the government-sanctioned militia members to have the equipment necessary for said militia? Wouldn't that simply be a natural function that follows from the proper organization of the militia itself? Who would possibly need to amend the constitution to ensure something that's just common sense?
No, it seems clear that the Amendment II was an individual right aimed at ensuring that the citizenry were able to defend themselves against a repeat of the sort of repression King George had inflicted upon the colonies - especially Massachusetts.
Actually, I'm sick of this entire fucking argument, and the only reason people point out the "well-regulated militia" part is because the gun-rights folks don't want anything regulated at all.
How about this, gun-rights folks? What if we all agree that some little thing or other has changed in the hundreds of years since this document was written? What if we all then agree that some weapons could be regulated?
Jesus fucking Christ.
What if the very thing that was intended to keep a government militia "well-regulated" was, in fact, the People's right to keep and bear arms?
The anti-gun nuts always make the same flawed argument that the 2nd Amendment was referring to the National Guard. The National Guard is the army of the Nation. By nation, they mean the states. The states are sovereign. The National Guard serves as a reserve for the Federal army, but in no event can the federal gov't utilize more than 60% of a state's National Guard. The National Guard are professional soldiers.
A militia, by definition, is composed of armed civilians. From the free online dictionary:
1. An army composed of ordinary citizens rather than professional soldiers.
2. A military force that is not part of a regular army and is subject to call for service in an emergency.
1. (Military) a body of citizen (as opposed to professional) soldiers
2. (Military) an organization containing men enlisted for service in emergency only
The 2nd Amendment is clearly pointing out that civilians need to bear arms in the event a militia needs to be formed. In no way, does the 2nd Amendment's militia clause imply that civilians should only be armed as part of a military force.
The 2nd Amendment, like the rest of the Constitution, places restrictions on government, not restrictions on the people.
It's 'the people" not simply "people" and that typically did get used to refer to collective groups. This is also why the drafts from the House consistently included a clause for conscientious objection in the 2nd Amendment, because the right it specifies was understood to be a collective right that imposed duties on citizens (men from 16-50 were typically required to serve). So, the defense of the right to bear arms (as opposed to merely owning a gun) raised concerns about a new right. Why the Senate struck the objection clause isn't known.
Also the passage you mentioned in the body of the Constitution was one of the reasons for a push for the Second Amendment. Many felt the notion that Congress could call out the militia was absurd. People feared they could order the militia from one state across the country and leave their home state defenseless. The Second Amendment was at least partly an attempt to counterbalance that by ensuring the Feds couldn't stop a state from arming locally.
As an additional point, I would say that your essay leans to heavily on "the government." A large part of this issue is clearly a clearly a question of Federal versus state authority. It may be that the National Guard, etc. also doesn't fit with the vision of the founders, but your current argument creates a false dichotomy of individual versus government authority. The Bill of rights was very much about concerns specific to the creation of a new and stronger Federal government in the Constitution. The Second Amendment is very much about precisely that issue.
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