People like to throw around the idea that they know what the framers of the Constitution “intended.” It’s often false and silly. In many important ways, the framers “intentions” are either unknowable or so far removed from 21st century reality that they border on irrelevant (unless you think they help you win your argument, in which case they are clearly knowable and crisply relevant). But it’s part of our national lay American religion, of which our Constitution serves as the bible.
Still, feeling bound by these imagined “intentions of the Framers” is a big part of the gun control argument, with which the nation is currently, and very understandably obsessed in the aftermath of the Florida massacre.
It’s quite unclear whether our Congress or our president have the good sense or the nerve (considering their reliance on the gun lobby) to do much of anything legislatively new or important to regulate access to assault weapons.
But if such legislation ever acquired some momentum, it would eventually have to face the argument that anything effective that might be done would violate the Second Amendment’s so-called right to bear arms.
When I refer to it as a “so-called right,” I am not just venting. The Second Amendment to the Constitution — which, ripped from its historical context, is incoherent — is quite obviously and explicitly derived from a system of state militias that existed in the 1780s that has little or no relevance to America in the 2010s. It was written in a world where weapons technology mostly stopped at swords, daggers, muskets and cannons.
I know I’m biased, but I think I might be less biased than those who believe that authors and ratifiers of the Second Amendment “intended” for assault rifles to be available to all, and that even a souped-up background check to screen out the dangerously mentally ill is too much of an infringement.
I’m not an expert on guns, but have written a fair bit about the Constitution, a habit I find very rewarding and often full of surprises. In fact, thanks to my MinnPost gig, I was able to write a three-part series in 2013 on what I called “the Second Amendment Mess.” It was focused on the Supreme Court history of the Second Amendment, which is much briefer and mostly more recent than you might suspect.
I’ll link to the three parts below. I pretty much guarantee you’ll find some surprises in it (unless you read it then and remember what it said, but I just reread it and found plenty of surprises, and I wrote the darn thing).
I’ll just mention a few of the biggest points:
Part one, “The Second Amendment Is a Mess,” focused on the origins of the amendment, and on this fairly amazing fact: The idea that the Second guarantees individual ownership of modern weapons was never discovered by the Supreme Court until 2008.
“The Second Amendment arose at time when most its key words and phrases meant something quite different from what they would mean today and from circumstances also fundamentally different — so different that its modern meaning is almost completely detached from its original purpose.
“For two centuries, the Second Amendment was pretty much a dead letter. States and the federal government adopted various gun-control measures. None were ever struck down on Second Amendment grounds. Until, that is, starting in 2008, when two recent 5-4 Supreme Court rulings stirred up such a Second Amendment mess that it is perfectly unclear what the Court’s conservative majority might eventually decide would violate the Second Amendment.”
Part two, “Gun Rights in the 1780s and Today,” includes one my favorite facts: that Elbridge Gerry of Massachusetts, who was a delegate to the Constitutional Convention of 1787 and was a member of the first Congress (which proposed the Second Amendment and the rest of the Bill of Rights), favored the Second Amendment because he believed that the collection of “well-regulated” state militias would it make unnecessary for the United States to have a federal military at all.
If you want to get into the minds of the framers and understand their “original intent” Gerry explained it thus: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.”
As I wrote in Part Two:
Tune into this line of thinking and you begin to understand why the constitutional language that gave the national government substantial power over the state militias — including, perhaps, the power to disarm them, as anti-federalist Patrick Henry suggested at the Virginia ratifying convention — was alarming.
On the contemporary far right, you can occasionally hear talk that resonates with the ideas above. But to most 21st century Americans, it borders on crazy talk for several reasons. The United States has a standing Army (and Navy, Air Force and Marine Corps) of magnitudes and capabilities far beyond anything the founding generation could have imagined.
It operates a global network of military bases scattered around the world. The United States is in a state of essentially permanent undeclared war with various nations, elements and what our presidents like to call “regimes,” which is a euphemism for governments we don’t like. Some of us are alarmed by this development but not because we fear that this standing military might be used against the states that make up the U.S.A.
Part three, “Trouble ahead: Justices’ rulings on gun rights raise thorny questions,” emphasized a fact I mentioned above: the idea that the Second Amendment guarantees an individual right of Americans to own guns, and even assault weapons and perhaps individual nukes (kidding there, I hope, but we do call them nuclear “arms”) is very new as a matter of Supreme Court interpretation.
Warren Burger, a Republican appointee who was chief justice from 1969 to 1986, and who so loved the Constitution that he retired in 1986 to chair the commission that celebrated the Constitution’s 1987 bicentennial, gave an interview on the PBS “Newshour” in 1991 in which he said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public.”
Burger believed that the Second Amendment guaranteed the right of states, through their militias, to arm those militias. The “fraud,” in his view, was the National Rifle Association’s campaign to interpret the amendment as a guarantee of each individual citizen’s right to arm himself.
Burger wasn’t rebelling against established jurisprudence. Not even slightly. He was accusing the NRA of making up the notion that gun ownership was an individual right. The Supreme Court had, in 1939’s “U.S. vs. Jack Miller” ruling, upheld the constitutionality of the “National Firearms Act,” which banned several categories of weapons.
When Burger made his 1991 statement about the fraudulence of the individual, non-militia, right to own guns, individuals were barred by law from owning even handguns in the District of Columbia, and many other states put tight regulations on individual gun ownership. The D.C. ban led to a constitutional challenge against the power of D.C. (and states and cities) to regulate individual gun ownership by a D.C. resident named Heller. The Heller challenge made it to the Supreme Court.
In the high court’s 2008 ruling in “Heller,” Justice Anton Scalia declared that there is an individual right to possess arms.
That’s how recent the individual, non-militia-related, right to own guns is, and it was approved by an underwhelming 5-4 Supreme Court majority. The full article includes some great back and forth between Scalia and Justice John Paul Stevens. It’s pretty strong stuff. Since I’m biased, I’ll just give you Stevens’ summary of his argument, which is consistent with everything above.
Stevens, for the four dissenters, wrote:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
The framers had just fought, and won a rebellion against a tyrannical government. The didn’t do that with slingshots, nor did they mean for anyone to have to use slingshots in the event their newly formed government went off the rails at some future date.
In any case, the SCOTUS has interpreted the meaning of the second amendment, as per it’s Constitutional duty. So while the left is as welcome to complain about it as the right is to complain about Roe v. Wade, they are both Constitutional rights and neither is going anywhere without a Constitutional convention or a coup.
Also, the author does the reader no service passing along incorrect, or misleading information. The National Firearms Act did not “ban several categories of weapons”; it regulated the possession of several categories of weapons and provided for a tax and registration process necessary to own them.
https://en.wikipedia.org/wiki/National_Firearms_Act
The Framers “won” the war with a professional army
The militias were unreliable and ineffective in combat against a professional army, and the “Framers” had lived through that fact. Washington had to disengage and build a professional army, and he had to rely on France’s professional army in order to win the War. The Framers were well aware of that fact, so they established a federal Army and Navy for national defense, and started building fortifications all up and down the East coast… and manning them with US Army soldiers. The primary funtion State Militias to the extent they existed, was protection from internal unrest, like slave rebellions or other uprisings like Shay’s Rebellion.
The concept of militias that Scalia ended up manufacturing for Heller and later McDonald v. Chicago is simply incoherent.
Unless you’re talking about giving citizens to right to own light and heavy machine guns, mortars, tanks, attack helicopters, and ground support aircraft, then ANY WEAPON a private citizen could own would – in effect – be like a slingshot against the British.
Tell that to the Afghans…they seem to have missed the memo.
Well…
They may have missed the memo; but, they did get crates of anti-aircraft missiles from us that reversed their war against the Russians. Ever see “Charlie Wilson’s War”?
No, not really. If we were a tyrannical government, willing to destroy anything and anybody, we would do that – including the Afghans. As Assad is doing in Syria with those who oppose him.
Make-believe right
Isn’t it ironic that the very people who complained for years about “making up rights” , and particularly their Supreme Court idol Scalia, have completely embraced a make-believe right to keep and bear arms. It’s based entirely on the virtual sanctification of the Constitution as Holy Writ and the worship of the “Founding Fathers” (never “Founding Mothers”) as latter day gods. If this veneration of the Constitution and the Founders is a lay religion, as Eric says, the Second Amendment has its own cult of followers in the NRA.
But calling something a “right”, even a “Constitutional right” is really not the end of the debate but the beginning. The Constitution protects other rights like free speech, due process, equal protection under the law and what we call privacy (but finds roots in the Fourth, as well as other Amendments). Only freedom of expression or speech and to some extent privacy as in reproductive rights finds protection as a “preferred right” such that any government interference or regulation requires the government to justify by some “compelling interest” or need. That’s a test that only developed within the last 75 years, just as the Supreme Court was dismantling “liberty of contract”, another “right” which the Court made up and the extended preferred protection to from about 1895 to 1935.
If there is an individual right to bear arms in the Second Amendment, it’s just a make-believe one which doesn’t automatically make it a “preferred right” like the First Amendment rights (really privileges which I would argue enjoy higher status Constitutionally than rights). It’s just another right that’s subject to reasonable governmental regulation. As much as the gun cultists and fetishists want to believe otherwise, once the mystique and fear and lobbying stranglehold of the NRA is finally removed and the government begins to act according to the public will, they’ll find there’s precious little that government can’t do under the Constitution to regulate the sale, purchase, ownership, or manufacture of arms, however they’re defined.
Too Narrow of a View
Is this topic up because of the recent tragedy? So the knee-jerk reaction is to put up a limited one-sided argument.
As Mr. Senker stated above, Americans were subject to a tyrannical force that did not believe in the American way. People worked to get ahead and have a right to protect what is theirs. The belief back then was that the people needed to be armed as the best method protecting our country from others. What if we went through the Revolutionary War only to be conquered by another nation or group of people? The Great American Experiment would have perished.
Now go to today’s world and there are countries that are taken over by others. As the crazy guy in PRK shows that there are people out there that will attack the US with mass destruction. We went through a dangerous period during the Cold War where the apocalypse was a possibility, albeit very small. The citizens being armed is in the national interest of maintaining the Free State that is explicitly explained. While the event of anything like this happening is ever so remote, that does not mean that we have ‘evolved’ from that. It will always be relevant. Who’s not to say that it could not happen 1000 years from now? The Founders believed that the citizens have a right to defend our great country.
Read your history
The American Revolution was not about tyranny per se, it was about money.
The colonists (a majority of them at least — many moved to Canada) had no objection to being ruled by a monarch (many of them wanted to anoint Washington king). What they objected to was taxes which they felt had been unfairly levied (‘taxation without representation is tyranny’).
Taking private property without redress or representation is tyranny of the first order. See also: The history of the USSR.
The Same Old Arguments from the NRA and Its Supporters
I don’t know why I am replying to this but here goes. How can you possibly think that citizens being armed with guns will stave off bombs, chemical or biological weapons, drones, tanks, or missiles from other countries? That is the responsibility of our government, which has the capability to defend against those means of attacking our country and we pay taxes to our government to do that. I will also point out that Ronald Reagan was shot even though he was surrounded by the Secret Service, who I assume are well-trained in the use of their guns to defend others. We also know there was an armed policeman at the Florida school who did not go back into the school to try to stop the shooter. Your response is a “knee-jerk reaction” with “a limited one-sided argument”, which has been said over and over again by the NRA and its supporters. I am sick to death of it.
Militia……
U.S. Constitution, Article I, Section 8……”The Congress shall have Power …..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, …..”.
Amendment II…..”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.”
Militia is the operative word in both references above, not the individual. An ‘individual’ is a part of the Militia…..the part that is ‘governed’.
Thank you for making this connection.
It is a fundamental rule of construction that the Constitution be read as a whole and that all parts touching on a subject be considered when doing so.
No Bob
We’ve been having this debate for decades, its not new, and there’s nothing knee jerk about it. As Eric points out, he’s been writing about the Constitution for Decades. His first sustained effort was back in the 90s while writing for the Strib if I’m not mistaken.
The “armed” population that supposed to be in the National interest is simply not a concept contained in the Second Amendment. No real definition of a Well Regulated Militia is synonymous with an “armed” population. A bunch of people with guns aren’t a Militia, and they’re certainly not well regulated, they’re just a bunch of people with guns. This is actually an obvious fact.
Given the homicide, suicide, and accidental death and injury numbers in the US, one can easily argue that all these guns are NOT in the Nation’s best interest. That is also an obvious fact.
Contextual and Cultural Relevance
Bob, I agree with you that the likelihood is low for an enemy invasion into the US. I think the likelihood of harm is coming from within is much greater than the likelihood of enemy invasion. It seems there is a mini apocalyptic event occurring in from within one US community or another almost every week and there is a preponderance of evidence that the current approach of relatively easy access to guns is working in an effective manner to control that. I also agree the likelihood of enemy invasion into the US may be different in 1,000 years, but right now, it’s substantially different than when it was founded and we need to deal with that in many different ways – one of which is decreasing access to weapons that can be used to so efficiently and effectively destroy communities.
The Second Ammendment
The NRA has done a fantastic job of turning a questionable interpretation of the Second Amendment into a powerful marketing tool for it’s sponsors–the arms industry. Thanks to some justifiably angry kids in Florida for pointing that out.
What About that Revolution?
Why did the American colonists succeed in defeating the most powerful empire in the world? The idea that it was because everyone owned guns is ahistorical nonsense.
Leave aside for a moment the fact that the American war (if not necessarily independence) served the geopolitical interests of France, as well as the commercial interests of other European powers. That factor tends to be understated in popular historical revisionism, but it was not the only factor. Another very important consideration was that the colonies were well-organized, largely self-governing, states. Every colony had an organized, “well regulated” militia. These militias were led by men who already had military experience. Popular mythology talks about the embattled farmers standing by rude bridges arching floods, but those farmers had often been drilling and preparing for some time.
Did the people own guns? Yes, but the guns were small fowling pieces. They were not military-grade weapons. Finding suitable supplies of guns that would actually be useful in combat was a constant preoccupation of the Continental Army. While the colonists may have had some experience shooting, they were basically pothunters, not someone who alleviates his insecurities by going to Cabela’s and picking out the biggest piece on display.
The Second Amendment reflects that experience. Although the Supreme Court may have ruled otherwise, Heller will not go down in history as the first time the Court ended up being wrong.
“From George Washington to John Augustine Washington, 27 July 1775
To John Augustine Washington
Camp at Cambridge about 5 Miles from Boston; July 27th 1775.
Dear Brother
On the 2d Instt I arrived at this place after passing through a great deal of delightful Country, covered with grass (although the Season has been dry) in a very different manner to what our Lands in Virginia are. I found a mixed multitude of People here, under very little discipline, order, or Government—I found the Enemy in Possession of a place called Bunkers Hill, on Charles Town Neck, strongly Intrenched & Fortifying themselves.”
“Well ordered militia? Yeah, not so much.
“During the American Revolutionary War, weapons and equipment were often in short supply. Iron foundries, such as Hopewell Furnace, produced weapons for the Continental Army. However, many soldiers and officers provided their own weapons and household items.”
https://www.nps.gov/museum/exhibits/revwar/guco/gucoweapons.html
Authoritative Source!
What better source could there be for hard, historical data than the caption for a picture on the National Park Service website? Clio beams with pride!
Gun ownership was common, but not even nearly universal.The militia’s arms and ammunition were kept in a common storehouse. A person who had a gun brought it to drills, but private gun ownership was not relied upon (why did the British send troops to Lexington and Concord? To make a house-by-house search?). Dutch traders grew rich selling rifles to the American Army, something they would not have needed to do if the Continentals’ Red Ryder BB Guns were sufficient.
“‘Well ordered militia?’ Yeah, not so much.” Overall, probably better ordered than the average “patriot” buying an AR-15. The local militia had regular drills and practice. The fact that some of the members of one militia did not form themselves well may point to the character of the local militia.
Or we could say the militia fighters were useless, and give the credit for independence to the French. Some British historians still like to think of it that way.
Didn’t say it was universal, RB. Appeal to authority and reductio ad absurdum are both logical fallacies, not the mark of a winning argument. Attack the facts, if you can, not the source.
The stores in common stockpile were, wait for it, under British control. The “one militia” angle is better, but it wont fly either. It was made up of people from several colonies; it’s all Washington had to work with.
France supplied gunpowder and ammunition, not arms, until they were sure an American victory was possible. Our guys slogged it out on their own until 1778; that’s historical fact.
And they were losing
also historical fact.
The American Revolution was really a sideshow of the ongoing British-French wars, which occasionally spilled over into their colonies.
Also, the term ‘Hessians’ — you’ve heard of them?
Most of the ‘British’ troops that fought against us were from the House of Hesse; King George’s German relatives. Very few British troops — they were tied up in the main show on the Continent, or dealing with the unruly Celts at home.
And yes, the militia did get better at the work of waging war as the years went on. Same is true of any regular Army unit that gets deployed for the first time, or private citizens fighting for their freedom. We learn what we have to learn…zippy quick if necessary.
Ummm . . .
“The stores in common stockpile were, wait for it, under British control. ” Nope. They were under the control of the locals. That was why the colonists were mobilized around Boston in 1775: to protect the local storehouses from the regular troops.
The Continentals at Bunker Hill were from Massachusetts. There were twelve other colonies, all of which had different militias with different levels of experience. In any event, by your reading of events, you have pointed out the absurdity off relying on gun-owning citizens for the common defense.
“France supplied gunpowder and ammunition, not arms, until they were sure an American victory was possible” The French began covertly supplying the Americans with gunpowder and arms (especially gunpowder) in the spring of 1776. before the Alliance and even before the Declaration of Independence.
Revolutionary War 1775-1783
2nd amendment 1791–about a decade after the war concluded.
The 2nd amendment followed after, and had to do with the organization of the defense of the country and the states, and reflects the states wishing autonomy.
Bunker Hill
The colonist lost the battle of Bunker Hill. One reason was that throughout the day “Militia” members deserted and went home. This how Washington came to the conclusion that he needed a professional army if he was going to defeat the British. Washington needed soldiers who were disciplined to follow orders, drilled to move in formation, equiped with military weapons, i.e. muskets with bayonets, canon, swords, etc. Throughout the War “militiamen” were the most unreliable units in the Army.
We can say a lot of things about the “Founding Father” but we cannot say they were stupid. Having won the war with a professional army, (both our own, and France’s) it inconceivable that the guys who fought that war would revert back to assuming that militias could defend the country. They created a professional Army AND Navy for that purpose. Just go out to Fort Snelling some day. That fort was built in 1820s by whom? And who manned that fort? You’ll find that it was the US Army, not a State or Territorial militia… why? Where was the State Militia when Custer went out to confront the “hostiles”? Even the State Regiments in the Civil War were not State Militias, they were volunteers for in the US Army organized by State.
And we can just change it back
It is entirely within the right of the Supreme Court to change it’s mind and return to the understanding that stood between the founding of the republic and the court’s very recent interpretation. (Also note that during that time no one took anyone’s guns away.)
I’m under no illusion that the court will change it’s mind soon; Republicans in 2016 decided on their own that the President may no longer may exercise his constitutional authority to appoint justices unless the President is Republican. (Such contempt for the Constitution!)
As citizens we have had every right to protect ourselves from weapons of war. You can’t run around at your kids school picnic with an RPG. You can’t bring a hand grenade to your local brew pub. You can’t use a tank to stalk deer. These weapons are extremely dangerous and while they may indeed be all sorts of drunken fun to shoot, no sane person would argue that we ought to allow people outside the military to operate them. So, you see, we’ve already drawn a line and citizens have every right to put weapons that can kill dozens of young people in a few seconds on the same side of that line as any other weapons of war.
Someday we’ll be able to overcome the NRA as well as the gerrymandering and the voter suppression put in place by the altGOP and allow the majority of citizens to decide once again that kids lives and safe communities are more important than someone’s “fun” and wild eyed paranoia.
It’s Time to Modernize the Second Amendment
The Second Amendment was approved in 1791 when there wasn’t a single gun with anywhere near the capability, capacity, or killing power of some of today’s guns. Today’s high capacity magazines and high-powered cartridges have only one purpose, high capacity killing. They are weapons of war. There is not any need for the public to have them. It’s Congress and the NRA that has the blood on their hands by not doing a single thing to bring the Second Amendment up to today’s reality. There weren’t any weapons of war in 1791 that come anywhere near the capability of today’s weapons. It is time to modernize the Second Amendment. I know it will be a hard-fought slog going up against our weakling congress’ sugar daddy, the NRA.
The Republicans always have three responses for anything to do with gun control. The first response is, “It’s not the right time to talk about it.” They never find the right time to talk about it. The second response is, “It’s not a gun problem, but a mental health issue.” They are half right. It is a mental health issue, but it is also a gun issue. The third response is, “Our prayers and thoughts are with you.” America has had it with all three irresponsible and insincere responses. If we do away with the high capacity weapons, it will minimize the number of people that can be killed at one time. Weaponizing everyone, as the NRA foolishly suggests, is not the answer. That is what the NRA wants because it is good for the gun industry, which is the NRA’s sugar daddy. The NRA and gun industry have a symbiotic relationship, which isn’t necessarily good for the public. Gun ownership and responsibility need to go together and not everyone is capable of the responsibility part. With each mass shooting the perpetrators prove that they are unable to be responsible law-abiding citizens. Nearly all have a previous record, which should set off red flags. Guns used to be aesthetically pleasing to look at. Many had generational family histories with memorable stories associated with them. Many had beautiful woods used in their construction. Walk into any gun shop today and there will be a wall of black, radical looking guns that don’t have anything to do with traditional American sports. For me, the radical looking guns are peddling exactly what the NRA peddles – fear and intimidation.
It’s obsolete, better and easier to simply repeal it.
The Second Amendment is obsolete at best, toxic at worse. It would probably easier to just repeal it than it would be to try to “update” it somehow. The closest thing we ever had to organized militias was the National Guard units, and those have long since ceased to be State Militias in any practical sense. Since no one needs slave patrols the Amendment is simply obsolete.
Any attempt to modify the Second Amendment would get bogged down in these endless and facile arguments over language. It’s a lot easier to argue that it’s obsolete, unnecessary, and toxic enough to repeal than it is to argue about changing it’s language or it’s function.
Just a note
to point out another no-longer-in-existence reason for local militia: conflict with indigenous people. We no longer need to either make armed war on these people or defend ourselves against their remaining members.
Another Note
At the risk of being That Guy, several states do still have active militias. They are separate from the National Guard, and operate as the military arm of state government, especially when the National Guard has been called into federal service. Most states say that the militia may not be deployed out of the state.
Wisconsin tried to revive its Naval Militia a few years back. The goal was to be able to use Naval medical facilities in case of an emergency (Army or Air National Guard units cannot use Naval facilities). The proposal did not pass.
I can’t an example of a State Militia
Just out of curiosity, can anyone find an example of one of these State Militias that’s still in operation? I can’t.
New York has both a land and a naval militia. I believe they work closely with the National Guard and Coast Guard.
New York Guard
Interesting. However militias like this don’t depend on the Second Amendment for their existence in the 20th or 21st century. As a genuinely well regulated government sponsored domestic militia it bears no resemblance to the universal militia manned by ordinary citizens with whatever guns they’ve purchased for themselves, and whom are requited to muster for combat in the even of an invasion.
It’s important to remember that Madison didn’t think the Second Amendment was necessary at the time because preamble to US Constitution, the VERY FIRST words are:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Second Amendment is redundant because we’ve already established that defense and tranquility are basic functions of a democratic government. There WAS a big argument about Federalism, an argument that Federalist won (Remember Madison was a Federalist) , but there was no question that State and local governments shared the same responsibilities, it was just argument of jurisdiction, not the basic role of government. Look at it in reverse- even without the Second Amendment, what legal argument could one produce that the NY Guard MUST be abolished? The Second Amendment is irrelevant in this regard.
And how else could we have controlled the slaves?
Your take on the 1780’s seems to neglect the needs of the plantation economies of the south. In the north, we imagine individual farmers and tradesmen volunteering to muster in the town square for mutual defense. The south, I think was a little different.
As I understand it, slaves often ran away individually or in groups, and the fear of insurrection was constant. Landowners needed to be able to raise an armed, semi-organized slave patrol quickly from neighboring farms without having to go into town to appeal to the authorities to gather and deputize a group of men.
For a plantation owner there was always an immediate existential threat that did not come from an external army or from one’s fellow citizens. This I imagine would have been a major impetus for insisting that the state not infringe upon the means by which the social order of the south was maintained.
In fact
The Southern states were worried that neighboring states would take advantage of (if not inspire) slave revolts to invade them. The Civil War was already simmering in the 18th century, and the Northern states were already sweetening the pot to get the southerners to stay in the Union.
It would be nice if people commenting here actually read at least Eric’s current article for MinnPost, and ideally, the article series he links. Or, alternatively, nice if they paid at least minimal attention to the points or arguments Eric makes in either one.
Instead, what we see are rote pronouncements of pro-gun absolutism a la NRA orthodoxy. The legal fact that such absolutism about gun “rights” dates from a 2008 Supreme Court ruling is ignored, as is Eric’s clarification that the Second Amendment addressed not foreign enemies, but our own government, as the force that prompted the need for state-based and state-regulated armed militias: to counter a standing army that colonists saw, correctly, as abusive of citizens.
There’s also the argument, made by many other Constitutional experts, that the Second Amendment was put in to pacify Southern states’ slave holders (a state militia, organized ad regulated by the states, could control and put down slave rebellions).
Most powerful to me is the point about the irrelevancy of the “originalist” Second Amendment–created in the 1780s–to the second decade of the 21st century. The weapons are categorically different, with all the power in today’s. And as Eric states, we have a standing army in the U. S.
Nobody needs an AR-15. It’s a weapon of today’s wars, and is the primary factor in the massacres of innocent civilians that are proliferating in our country in this century. None of these guys could have slaughtered as many people as they did unless they had a big-clip military-style assault weapon.
It’s the guns.
Does anybody need
A giant house (or four), a car that goes 200 mph, mace, hunting knives, explosives, etc.? While I don’t, I don’t demand that nobody else can have them.
Take a big clip loaded AR-15 and place it on the floor at the center of a high school and start a camera (this would be a great documentary) filming it. See if any persons are killed unless the gun is moved.
The fact is that the choice of an AR15 (and similar) for these type of events is due entirely to their macho military-chic that feeds into the fantasy of revenge. glory and battle. Looking at the ads that are used to sell these weapons, they usually show a crouched figure in vaguely “black-ops” get-up ready to rock-and-roll. Couple that with decades of movies and “first-person shooter” games that fetishize the weapon and desensitizes to the carnage of shooting other humans, and hey, you’re living the life intended when you have an AR15 in hand, ready to do battle with the world.
You could kill the same number of people with purple semi-automatic weapon with a Barney-shaped stock, but it wouldn’t be the same–there would be no “cool-factor”.
And that is the AR15–a means of fulfilling a fantasy.
Wild West
A giant house (or four), a car that goes 200 mph, mace, hunting knives, explosives never went on a school shooting spree.
Take Nikolas Cruz and place him on the floor at the center of a high school and start a camera (this would be a great documentary) filming it. See if any persons are killed unless Cruz is given a gun.
I’m sure you think you are being patriotic but you are really carelessly putting innocent childrens lives at rick by insisting everyone should be armed regaurdless. This isn’t the wild west anymore.
I think that the point was about rights
Or more precisely, taking away other people’s rights. There also is no mention of arming everyone (everyone has a right to be unarmed) in my post.
Sounds like a plan
Mr. Senker’s interpretation of the founders’ thinking is interesting, but without support. Instead of slingshots (not used during the American Revolution, to my knowledge), folks in those days relied on the swords, daggers, and other primitive weapons Eric mentions, as well as flintlock firearms, since the percussion system was nearly half a century in the future, self-contained cartridge ammunition another 30 or 40 years beyond that, and the semi-automatic weapon another generation beyond even that. The repeating rifle was a bloody revelation during the Civil War, as was the Gatling Gun. And yet, with all that 19th century technical innovation, the notion of every individual having a right to carry a personal firearm doesn’t seem to have entered the public domain.
Per Mr. Senker’s curious interpretation of the National Firearms Act (curious because “to regulate,” at least in my Webster’s dictionary, means “to control” and “banning” would seem to fall under the aegis of “control”), it would seem possible, even fairly easy and straightforward, to require every firearm to be registered (and of course tracked), and to levy taxes and fees on both the sale and possession of those firearms.
According to articles I’ve read elsewhere, a lot of people might get on board Mr. Senker’s program.
Tax the purchase of firearms (over and above the normal sales tax) – setting the rates, perhaps, based on their potential to kill or maim multiple individuals, whether human or another species. Mr. Senker’s Revolutionary War musket might pay a minimal amount, while my AR-15 would pay several multiples of that. A replica (or even an original) of an 18th century muzzle-loading pistol might pay a very small tax, while a 9mm Sig-Sauer semi-automatic pistol would again have a considerably higher one. Charge a fee – on a sliding scale, of course – to register that same firearm for the protection of the public and the owner in case of theft.
These regulations would vary, of course, on a state-by-state basis, so Mr. Senker might not be able to take his musket with him to one of those dreaded coastal states, but he’d probably be fine in Wyoming.
One potential drawback to the Senker System might be the financial burden of owning and registering multiple firearms, with all the associated taxes and fees, but, just as they now subsidize legislators, perhaps the NRA could be persuaded to subsidize individual gun owners who would like to possess more than one weapon. Another potential downside to the Senker System involves liability insurance. States would vary, of course, but some states might require, as part of their regulatory responsibility, that gun owners and/or purchasers also purchase liability insurance, the rates for which would surely be set by actuaries who’ve studied the potential financial consequences to the company and its shareholders should the weapon in question be used for unlawful, even homicidal, purposes. I’d anticipate pretty high rates for pretty ordinary liability coverage.
( quote)Despite his deserved
( quote)
Despite his deserved conservative reputation, Scalia left some gifts for liberals in his Heller ruling. He wrote that the right to bear arms had limits. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
The late justice also more generally offered the belief that “like most rights, the right secured by the Second Amendment is not unlimited.” It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
http://www.newsweek.com/antonin-scalia-ronald-reagan-supreme-court-orlando-shooting-newtown-sandy-hook-472460
(end quote)
The Founders were literate
When they used the phrase ‘The People’ in the Constitution they were referring to a collective body, not to individuals. When they wished to refer to individuals they said so, as in “no person shall be a Senator….”
Hmm for all of those that fear an actual attack from another country, why would you need an army when the easiest and cheapest way to take over a country is to have a systematic destruction of trust in democratic institutions via bots ? You might want to do a little research on Russian and China’s methods these days–they spend far less on the military that we do, but the damaging effects of our institutions of their cyber-warfare is far greater. The days of giant invasion armies are over
And if “rogue states” like North Korea or Iran lobs a nuke at us, are you going to shoot it down with your AR 15 ? And, do you think they’ll follow it up with armed invasion via landing craft on Lake Superior after that?
Face it, the reason why many want AR15s is to live out a fantasy–which in the most likely down-to-earth scenario consists of efficiently and effectively shooting federal, state or local officials (and your neighbors) who somehow don’t live up to your interpretation of law, constitution and custom. That is the cold, naked truth of the argument.
The People
First, not wanting a standing army, the militia was made up of citizens that were required to answer a call to muster bringing their individually owned firearms. Second, the term, “The People” is in the 1st, 2nd, 4th, 9th, and 10th amendment. Are all these civil rights only collective rights, not individual rights?
Yes
The all refer to the citizenry in aggregate, not to individuals.
Note that the Fourth Amendment ends with “the persons or things to be seized”, not the people to be seized.
Note the frequent use of ‘persons’ where individuals are clearly the subject.
The militia you’re describing has never existed
The United State never had any law that required all able bodied citizens to be “armed”. Nor has any law ever existed that would require all such armed citizens to report for duty in defend the nation. If our government wants to compel military service it has to institute a Draft. Citizens who own guns have never been required to engage an enemy in combat. Again, the US constitution explicitly created a standing Army and Navy to defend the nation. They never passed a law, or amendment, or Article that in any way could require citizens to be “armed”, and to report for military service with those “arms”.
I wonder if it would be OK to leave this quote here, by that well known gun fetishist, and right wing firebrand, Hubert H. Humphrey?
“Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used, and that definite safety rules of precaution should not be taught and enforced. But the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against tyranny which now appears remote in America, but which historically has proved to be always possible.”
Sure!
Just show me the parts that say we all need to conceal and carry 24-7-365 all the time, and wear Kevlar vests, everywhere we go, we should hold our ground, and blow folks away when feeling threatened, Fair enough?
“one more safeguard against tyranny which now appears remote in America, but which historically has proved to be always possible.”
Should we all have bomb shelters as well, there is a remote possibility that we could get bombed?
Why Not?
By all means, quote the supporter of the 1968 federal gun control legislation.
Since we’re repeating what was said in the past, let us remember the words of Ronald Reagan. Reagan, as you may not care to recall, supported both the Brady Bill and the ban on assault weapons. While he was Governor of California, he said that he saw “no reason why on the street today a citizen should be carrying loaded weapons.” Guns were a “ridiculous way to solve problems that have to be solved among people of good will.”
He made those remarks as he was signing the Mulford Act, a law prohibiting carrying loaded firearms in public. That law was passed in response to reports of armed citizens preparing to resist the tyranny of an armed state, but from the standpoint of being part of the wrong race.
Yes but for…
inverse reasons. The Black Panthers were scaring the bejezus out of Reagan. Remember they walked into the California statehouse armed. Laws can be passed at the convenience of racism one could conclude as what’s at the root of Heller or the right wing takeover of the Park out west. The problem we have is bigger then guns but it definitely includes freewheeling sales on anything any time anywhere. Check out NRA Tv and tell me the only thing being advocated is an “alleged” civil right. Thanks Eric for your review of reality.
Humphrey on guns
The closest thing to attribution that I could find is the statement that Kennedy and Humphrey both supported the 2nd Amendment in 1960. Of course, that was before the Court redefined the 2nd Amendment to refer to individual gun ownership.
Can you provide a more specific attribution?
Google has dozens of citations, don’t know what the prob was. But here’s one:
https://www.cato.org/publications/commentary/why-anti-tyranny-case-2nd-amendment-shouldnt-be-dismissed-so-quickly
Google has dozens of repetitions
of your statement, but no specific citations as to where and when Humphrey said it.
Just repeats that it was said during the 1960 campaign.
Humphrey was wrong.
Unless Republicans have now decided that Humphrey was infallible, this is just one of many subjects matters wherein he was mistaken.
Guns in the american colonies
Gun ownership was not as widespread in the colonies as many believe:
“Spiking the Gun Myth”
http://www.nytimes.com/books/00/09/10/reviews/000910.10willot.html
A doctor on the shooting….
(quote)
I was looking at a CT scan of one of the mass-shooting victims from Marjory Stoneman Douglas High School, who had been brought to the trauma center during my call shift. The organ looked like an overripe melon smashed by a sledgehammer, and was bleeding extensively. How could a gunshot wound have caused this much damage?
The reaction in the emergency room was the same. One of the trauma surgeons opened a young victim in the operating room, and found only shreds of the organ that had been hit by a bullet from an AR-15, a semiautomatic rifle that delivers a devastatingly lethal, high-velocity bullet to the victim. Nothing was left to repair—and utterly, devastatingly, nothing could be done to fix the problem. The injury was fatal.
A year ago, when a gunman opened fire at the Fort Lauderdale airport with a 9 mm semiautomatic handgun, hitting 11 people in 90 seconds, I was also on call. It was not until I had diagnosed the third of the six victims who were transported to the trauma center that I realized something out of the ordinary must have happened. The gunshot wounds were the same low-velocity handgun injuries that I diagnose every day; only their rapid succession set them apart. And all six of the victims who arrived at the hospital that day survived.
Routine handgun injuries leave entry and exit wounds and linear tracks through the victim’s body that are roughly the size of the bullet. If the bullet does not directly hit something crucial like the heart or the aorta, and the victim does not bleed to death before being transported to our care at the trauma center, chances are that we can save him. The bullets fired by an AR-15 are different: They travel at a higher velocity and are far more lethal than routine bullets fired from a handgun. The damage they cause is a function of the energy they impart as they pass through the body. A typical AR-15 bullet leaves the barrel traveling almost three times faster than—and imparting more than three times the energy of—a typical 9mm bullet from a handgun. An AR-15 rifle outfitted with a magazine with 50 rounds allows many more lethal bullets to be delivered quickly without reloading.
I have seen a handful of AR-15 injuries in my career. Years ago I saw one from a man shot in the back by a swat team. The injury along the path of the bullet from an AR-15 is vastly different from a low-velocity handgun injury. The bullet from an AR-15 passes through the body like a cigarette boat traveling at maximum speed through a tiny canal. The tissue next to the bullet is elastic—moving away from the bullet like waves of water displaced by the boat—and then returns and settles back. This process is called cavitation; it leaves the displaced tissue damaged or killed. The high-velocity bullet causes a swath of tissue damage that extends several inches from its path. It does not have to actually hit an artery to damage it and cause catastrophic bleeding. Exit wounds can be the size of an orange.
With an AR-15, the shooter does not have to be particularly accurate. The victim does not have to be unlucky. If a victim takes a direct hit to the liver from an AR-15, the damage is far graver than that of a simple handgun-shot injury. Handgun injuries to the liver are generally survivable unless the bullet hits the main blood supply to the liver. An AR-15 bullet wound to the middle of the liver would cause so much bleeding that the patient would likely never make it to the trauma center to receive our care.
One of my ER colleagues was waiting nervously for his own children outside the school. While the shooting was still in progress, the first responders were gathering up victims whenever they could and carrying them outside the building. Even as a physician trained in trauma situations, there was nothing he could do at the scene to help save the victims who had been shot with the AR-15. Most of them died on the spot; they had no fighting chance at life.
https://www.theatlantic.com/politics/archive/2018/02/what-i-saw-treating-the-victims-from-parkland-should-change-the-debate-on-guns/553937/
(end quote)
Needless to say, this is what the AR15 was designed to do and the subtext of the selling promises. Kill people as efficiently as possible. Enforce your message. Just like in the movies and video games. Master of the universe.
The “militia” fantasy.
Mixed in with all the other militia myths is the idea that all these guys with guns have prevented the rise of an oppressive or totalitarian government in the United States. Mixed in there is also the myth that the framers were afraid of a standing Army, this is simply nonsense.
The Framers created a nation of laws governed by the US Constitution. Not ONCE since that Constitution was ratified has an armed population risen up to drive back the forces of oppression. The framers created a liberal democracy with divided powers, independent judiciary, etc. etc. and it’s always been those laws and those checks and balances that have kept our government democratic. Democracy is our defense against tyranny, not the NRA.
The framers created a standing US Army AND Navy to defend the nation. THAT standing Army built and manned Fort Snelling in 1820 for instance. Obviously they wouldn’t have done that if they didn’t believe in standing armies. It’s true that Historically prior to the Cold War, the US had a relatively small standing Army but that was always been about cost relative to threat. Since the War of 1812 the threat of foreign invasion has been nonexistent so the expense of maintaining a “large” standing Army simply couldn’t be justified. It was fiscal responsibility not fear of standing armies that limited our military spending.
And by the way, you’ll notice that Republicans who now promote most of these militia myths NEVER argue that we can cut military spending because we have an armed militia to rely on in case of invasion or attack. Nor do they constantly argue that our militarized law enforcement with armored cars and combat gear are unnecessary because of our armed militias. These “militia” arguments are patently specious and transparently incoherent.
Our militarized law enforcement with armored cars and combat gear are unnecessary with or without militias.
Now you heard it from a pro-2nd amendment Republican, and we can put that myth to rest.
I wish…
It would be nice to dial back the militarization of law enforcement, but I don’t think gun rights advocates can rely on Law and Order Republicans to sign off on that project.
Amazing contradictions…
Mr. Black begins by telling us that it is almost impossible to discern what the writers of the constitution “intended.”
He next tells us what the Constitution meant in the days it was written.
He then tells us that the constitution never meant what it was intended to mean.
Of course – at last resort technique – a liberal can always discern that the constitution means today what it never meant before.
Contradictions
Originalism is biggest Constitutional contradiction in America. The idea that someone today can KNOW what the guys who wrote the Constitution would say about a bunch of stuff they couldn’t even imagine at the time is fantasy owned by conservatives, not Mr. Black.
Historians can tell us with a reasonable degree of certainty what the framers were thing about the Constitution when they were writing it, arguing about it, and ratifying it. That’s a matter of historical documentation.
Given that historical knowledge we can determine whether or not those who claim to be following original intent are actually doing so, or making a specious claims. When we compare the claims of contemporary gun rights advocates to the actual Constitution and it’s meaning at the time, we find little if anything to support their claims regarding individual ownership, universal militias, and some kind of back-up safety against a tyrannical regime of the future. There is no law of any kind anywhere in the entire nation let alone the Constitution that requires citizens purchase their own military grade weapons, store them in their own homes, and join in battle should the nation be attacked or invaded. Rather what we find are government organized tax payer financed militias with military weapons stored in keeps, or armories. Armed insurrection is explicitly defined as treason punishable by death. And Congress explicitly created a professional Army and Navy and started building fortifications all up and down the East Coast to defend the nation. That’s what was going on back then, and its documented.
The fantasy of contemporary gun rights advocates and “Originalists” is that they can KNOW what the founding fathers “would” think today if they were to think about assault rifles, stem cells, abortion, privacy, etc. THOSE claims of “knowing” intent, are simply products of magical thinking and grandiose psuedo-intellect. This is the realm where we have no Constitutional right to privacy because the word “privacy” don’t appear anywhere in the Constitution, but we have all kinds of Constitutional gun rights despite the fact that the word “gun” appears absolutely nowhere in the Constitution.
And yes, finally we have the issue of relevance, how relevant is the founding father’s intent anyways? As free people we have been empowered to govern ourselves, THAT’S the primary feature of out Constitution. We have been given explicit powers to change the Constitution if we see fit to do so. Aside from secular worship there’s no rational reason to assume that we’re bound by the framers “intent” even if we can figure out what it was. Must we bring back slavery and revoke voting rights in order to conform to the “founder’s” intent?
Enforcing the Constitution and enforcing the founders intent are very different things. One is a set of guiding principles subject the will of the people, the is perverse deification.
It is really interesting that people who who value the 2nd amendment for the supposed ability to defeat a government they don’t like guarantees that the Constitution is a failure..
The Constitution is all about the orderly progression of change, compromise and accommodation.
The resort to arms is a statement that those Constitutional processes failed and are not the answer.
And so, the absurdity of resorting to arms to restore a Constitution that obviously didn’t work is obvious.
Yes, it’s absurd
It’s logically incoherent to suggest that authors of the Constitution would build in some kind Constitutional “right” to overthrow the government. The only scenario whereby we have totalitarian government in need of overthrow would be one where someone tears up the Constitution. Presumably the Second Amendment would be tore up along with the rest of the Constitution so it can’t possibly guarantee anything. It’s like: “We were going to exercise our Second Amendment “right” to overthrow the government, but then they tore up the Second Amendment so that was the end of that.” Foiled again.
Who’s the militia supposed to protect us from?
The purpose of the militia is supposed to protect the state from internal insurrection at least as much as from federal tyranny. So how does it make sense to interpret the 2nd Amendment as giving a right to bear arms to the insurrectionists who are fighting — the militia?
Yes and no
Actually the primary mission of militias was always to protect us from insurrection, mobs, slave rebellions, etc. And if necessary they could in theory be deployed for national defense, although we never needed a Second Amendment to establish that. There were NEVER intended to protect us from federal tyranny, the US Constitution classifies THAT as Treason. The foundational assumption in the US Constitution is that our laws, elections, citizens, checks and balances, Bill of Rights, the form of this government itself and the nature of liberal democracy- protects us from federal tyranny. If THAT fails for some reason the Constitution itself, including the Second Amendment, would be moot. The founders were well aware of the fact that an armed population is actually no guarantee against tyranny, they came up with something better and more durable than an armed population.