Folks, we have a guest blog entry from a forum discussion!
The 2nd Amendment: Where it came from, what it means
by Silas Soule
I’ve seen many dubious statements about the 2nd Amendment to the U.S. Constitution during recent discussions on gun ownership, and I’d like to shed a little light on this topic. First, let’s just trot that amendment out. This is the version that was proposed by James Madison when he made a motion to make various changes to the proposed Constitution. Interestingly, it provided for conscientious objection to military service:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
There are actually two official versions of the amendment as it was passed:
As passed by the Congress and preserved in the National Archives:
“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.”
As ratified by the States and authenticated by Secretary of State Thomas Jefferson:
“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.”
Source: Second Amendment to the United States Constitution (Wikipedia) https://en.wikipedia.org/wiki/Second_Am … nstitution
Many people are arguing that the 2nd Amendment means that people have a right to own firearms ONLY in order to serve in a government militia. If this were the case, why is it located in the Bill of Rights (the first ten amendments to the Constitution)? If it were only about militia service, it would surely make more sense to put it in Article I, Section 8 of the Constitution:
“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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
Clearly, the rights enumerated in the Bill of Rights are rights of the people. And we know this is the case because these are amendments that were tacked on to address the concerns of the anti-Federalists, who were concerned about a powerful federal government.
Source: http:// http://teachingamericanhistory.org/bor/ … ed-debate/
James Madison, when proposing the inclusion of the Bill of Rights, addressed Congress, saying:
“It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures some things to be incorporated into the constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government “
The liberties the anti-Federalists were worried about were things such as freedom of speech, freedom of religion, freedom to peaceably assemble, freedom from warrantless searches and seizures, freedom from arrest and detention without due process, and so on. And this was because of their experiences as British subjects, as well as their knowledge of world history. Some Federalists argued that a Bill of Rights was not necessary, because it was to be assumed that any rights not explicitly granted to the federal government were to be retained by the state governments and by the people. Since the Constitution didn’t reserve the right to possess firearms to government soldiers and agents, obviously the people had this right. Madison argued that not spelling out these rights would lead to a slippery slope, because as the federal and state legislatures made new laws, it might become unclear when they had overstepped their bounds:
“It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a call of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent; because in the constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the Government was established. Now, may not laws be considered necessary and proper by Congress, for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments.”
Madison argued that by spelling out certain rights, the amendments would act as an “impenetrable bulwark” against government encroachment on the rights of the people:
“It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”
Now, if the intention of the 2nd Amendment was simply to obligate citizens to serve in a local militia, why would this be considered a right or freedom which needs to be jealously guarded? It would be a duty or obligation imposed on the people, would it not? It would make more sense, as Madison’s original proposal stated, to protect people from this kind of forced conscription and military service. It makes no sense to give people a “right” to be subjected to military service and to require them to purchase and keep in their homes what at that time was very expensive, military-grade equipment.
So let’s assume that I’ve established that the public has a Constitutional right to own firearms. What kind of firearms are we talking about? Clearly, these were modern, military-grade firearms that people were being allowed to own. There is nothing in the 2nd Amendment about hunting or self-defense – it talks about militias and national security. Since there were provisions for a national army, clearly the 2nd Amendment is referring to state militias, which could be called into service on the national level, and were during the Revolution. The framers were so concerned about having a standing army that they included a clause which limited funding to two years, so that it would not become a threat to democracy:
“In thinking about the potential dangers of a standing army, the Founding generation had before them the precedents of Rome and England. In the first case, Julius Caesar marched his provincial army into Rome, overthrowing the power of the Senate, destroying the republic, and laying the foundation of empire. In the second, Cromwell used the army to abolish Parliament and to rule as dictator. In addition, in the period leading up to the Revolution, the British Crown had forced the American colonists to quarter and otherwise support its troops, which the colonists saw as nothing more than an army of occupation. Under British practice, the king was not only the commander in chief; it was he who raised the armed forces. The Framers were determined not to lodge the power of raising an army with the executive.”
Source: http://www.heritage.org/constitution/ar … rmy-clause
These militias were intended to participate in defense against foreign armies and to provide security at the state level against armed attacks. However, it was clearly understood that an armed public was also a defense against the imposition of a despotic form of government, since the colonists had just waged a successful war of independence against their own government, the British monarchy. The Declaration of Independence makes this quite clear:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”
How did the colonists abolish their tyrannical government? With privately owned firearms, weapons seized from the government, weapons captured from government troops, and weapons provided by the French monarchy. People often scoff at the notion of lightly armed citizens overthrowing a tyrannical government in the modern world, but examples are all around us, in Afghanistan, Iraq and Syria. These are movements with no air power and very little armor. Not to mention, popular support, at least in the case of IS, is probably not especially high. True, they have the assistance of other states, but the American colonists were also helped by France, a monarchy which at that time was clearly more repressive than the British.
But another thing that the framers included in the Constitution is the right of the people to change anything they want to. This is also from Madison’s proposal:
“That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”
So if we want to change the Constitution on the subject of firearms, we can. The government currently limits in many ways who can own firearms and what kind of firearms we can own, a classic case of creeping government erosion of a constitutional right, but clearly, there is a public safety issue which has resulted from the criminal use of firearms. If we want to retain the original purpose of the 2nd Amendment, which was to allow an effectively armed public, any restrictions on the ownership of firearms should be focused on reducing the criminal use of firearms, not on limiting the right of Americans to own modern firearms.
Do we want to continue to have an armed public? If we lived in Denmark or in Iceland, it would not really seem necessary, would it? But we don’t. We live in a country that, in my opinion, is on the verge of becoming a police state, a country where the government is only loosely controlled by the public, a country that has a record of violating international law and the Constitution, a country that has militarized its police forces, a country in which almost 1/3 of the public has a “criminal” record, a country whose police forces are often accused of use of excessive force and unnecessary shootings.
Becoming a police state: http://www.thedailybeast.com/articles/2 … y-yes.html
Government loosely controlled by the people: http://www.pbs.org/moyers/journal/blog/ … ligar.html
Violations of international law: http://worldnews.nbcnews.com/_news/2013 … anamo?lite
Violations of Constitution: https://www.freedomhouse.org/report/tod … ll-chapter
Militarized police: http://www.salon.com/2014/07/04/11_dist … e_partner/
1/3 of Americans have criminal records: http://www.wsj.com/articles/as-arrest-r … 1408415402
Excessive force: http://blog.amnestyusa.org/us/what-you- … ed-states/
The writer Naomi Wolf, during the George W. Bush administration, composed a list of the ten steps that would-be police states usually take on their road to absolute power:
1. Invoke a terrifying internal and external enemy
2. Create a gulag
3. Develop a thug caste
4. Set up an internal surveillance system
5. Harass citizens’ groups
6. Engage in arbitrary detention and release
7. Target key individuals
8. Control the press
9. Dissent equals treason
10. Suspend the rule of law
Source: http://www.theguardian.com/world/2007/a … sa.comment
If you compare this list to the current reality in the United States, the results are not very reassuring. Clearly, action at the ballot box is the best, most sane way to change this. No one wants to live in a Syria. But as the Syrian people learned, sometimes calls for change are met with indifference and even violence. Police states are not known for holding free and fair elections, and our opportunity for peaceful, democratic change may at some point be closed off to us. History shows that this is not an imaginary, far-fetched scenario.
Let’s look at the statistics. How much of the gun violence in the U.S. is the result of people misusing rifles? Not much, it turns out. According to FBI statistics, which are probably not complete, in 2013 there were 12,253 reported murders. Only 285 of these were committed with rifles, and 308 with shotguns. 428 were committed with blunt objects (baseball bats, etc.) and 687 with body parts (fists, feet, etc.). Handguns, however, were responsible for 5,782 homicides. As these figures make clear, we do not have a “combat assault rifle” (modern rifle) problem, we have a handgun problem.
Source: https://www.fbi.gov/about-us/cjis/ucr/c … 9-2013.xls
Our Constitution is not something that we should change lightly. I would suggest that the focus of any measures to reduce gun violence be handguns, including those of police officers, because more people have been killed with guns in 2015 by police officers than in mass shooting incidents. As of October 1, 2015, the Washington Post reported that 380 people had been killed in mass shootings, while The Guardian’s tally showed that 871 had been killed by police officers during the same time period. As of October 26, 2015, a total 32 law enforcement officers of all kinds have died in “firearms-related” incidents, which may include gun accidents. Gun violence is a symptom of a socially dysfunctional society. We need to do something about the root causes of violence, all kinds of violence, and not allow criminal behavior to be used as a pretext to disarm the public.
2015 mass shooting deaths: https://www.washingtonpost.com/news/won … reds-dead/
Killed by police officers in 2015: http://www.theguardian.com/us-news/ng-i … s-database
Officers killed by firearms in 2015: http://www.nleomf.org/facts/officer-fatalities-data/