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.
I was sitting around on this beautiful morning reading the Bill of Rights, as I am want to do. I noticed something about the Second Amendment that hadn't struck me before. It is the only one that provides a rationale. It's not just the only such amendment in the Bill of Rights, it is the only one of the 27 amendments to the Constitution that specifically states why the rule is there.
I went online to learn more about the Second Amendment. There are no end of resources for analysis and opinion about each and every word:
- What does “well regulated” mean? This is pretty easy; in the 18th century “well regulated” meant something that functions properly, like a wristwatch that keeps time or a well-oiled plow.
- Why did they use the indefinite article “a” instead of the definite article “the” in specifying “a well regulated militia”? At the time of the first Congress most people in America saw the country as a confederation of states. Just as today, the representatives considered themselves to represent their own state as much as, or more than, the nation. Each state had its own militia. Thus, the authors were obviously thinking of their own state militias, rather than the national army.
- What does “militia” mean? What does it mean to “keep” arms? What does it mean to “bear” arms? And so on, and so forth. I leave it as an exercise to the reader to study up on any of these terms that interest you.
“A well regulated militia, being necessary to the security of a free state…” Why? Why did the first Congress of the United States give a rationale for the Second Amendment but not for any of the others? Why didn't they just say, “The right of the people to keep and bear arms shall not be infringed”? Alternatively, why doesn't the First Amendment say, “Because we're a nation with many different religions, and we want people to be able to speak their minds, and we were escaping religious and intellectual persecution when we came here in the first place, Congress shall make no law…” Why doesn't the third amendment say, “Because we believe in private property, no soldier shall, in time of peace…”? Etc.
Moreover, they gave one and only one, very specific, reason. They didn't write “Because we haven't yet established an effective police force so people need to be able to defend themselves, and because people need to be able to hunt for food, and because practically everyone has weapons …and since a well regulated militia is necessary to the security of a free state…” No. For this one amendment they gave a reason and it was both singular and specific. What were they thinking when they chose to write this amendment in this way? What is it about the right to bear arms that compelled explanation when other amendments, no less important and no less worthy of justification, did not?
The authors of the amendment say the reason that “the right of the people to keep and bear Arms, shall not be infringed” is that “A well regulated Militia [is] necessary to the security of a free State.” If by “the security of a free state” they meant protecting the United States of America against foreign enemies, then clearly we now have that covered, with or without citizens keeping and bearing their own arms. The current Armed Forces of the United States is the most powerful on earth. When young men and women enlist, they are extensively trained in the use of whatever weapons are appropriate for their service. Prior experience with arms does not necessarily improve the quality of our national security. Most people entering the Army, Navy, Air Force, Marines, or National Guard, will never have had any experience with the actual weapons they will need to use. Even gun owning families are unlikely to have fully functional, state of the art, US military armaments. Yes, some do - but as a percentage of gun owners, that number is small. Even if they did, the amount of time most youth will have spent training with such weapons is likely insignificant in comparison to what the government will provide once they don a uniform. Arguably, the hundreds or thousands of hours that kids (and adults) spend playing video games might be more valuable training than the actual possession of such weapons.
Also, our Armed Forces do not currently expect volunteers or draftees to show up with their own guns. That was the case at one time, but no longer. The US government provides our soldiers with the weapons that they are expected to use. Bringing your own Winchester to Desert Storm would be unnecessary.
Others suggest that “the security of a free state” should be interpreted in the context of the early days of the country when the states thought of themselves more as a confederation than a nation. The country had only been around for a few years and no one knew how it was going to work out. Many states had long been rivals. With that context in mind, “the security of a free state” could mean that the individual states wanted to maintain their ability leave the union and even to potentially fight each other. Thus, they wanted to make sure that the federal government couldn't make a law that would stop that from happening. I seem to recall that we gave secession a try and it didn't work out so well. In almost 250 years we've gone that route a grand total of once. I hope that no one wants to do it again.
But even if they did, would individuals keeping and bearing arms, and well regulated state militias, really do the job in 2015? For the sake of argument (and so as not to piss off anyone residing in other states) I will pick on my own state - California. Let's say that California decided to violently secede from the union. We would need to have modern, military grade weaponry to even attempt such lunacy. Fortunately, a fair amount of military manufacturing occurs in California. So, we might be able to raid Lockheed Martin and other manufacturers for armaments with which to take on the US government. But that doesn't mean that individual Californians owning small arms would give the state much of a leg up in this battle. We would need tanks, airplanes, drones, bombs, rockets, etc. The Second Amendment does protect our right to own such weapons, but how many of us do, and how many of us know how to use them and use them well? I think it goes without saying that even taking advantage of military hardware that's manufactured within California, and even given the state's large population, we wouldn't have a prayer against the combined might of the other 49 and the well trained, well equipped US Armed Forces.
It is common to hear people speak of the Second Amendment as meaning that individuals, and small militias, should be able to overthrow the government should it fall into tyranny. But clearly this has never happened, and given modern defenses this cannot happen using conventional weapons. Through our history there have been numerous terrible assassinations, and attempted assassinations, of our leaders. Fortunately these events are getting less common - probably due to the formidable security we provide to those at the highest levels of government. There are certainly no fewer people that have hated each of our recent Presidents, but based on results, killing them with a firearm appears to be impossible.
Even if we consider past attacks on Presidents, cabinet members, and congress people, the assailants were virtually always insane individuals. Regardless of the attackers and their motivations (rational or otherwise), no assassination has ever changed our government in any way other than personnel. Perhaps JFK was killed as part of a conspiracy that disagreed with his policies. Maybe John Wilkes Booth's action echoed the sentiment of a contingency of Southern confederates. But even in these cases, though the Presidents were killed, the structure and policies of the US Government continued.
In recent decades there have been some noteworthy attacks on the US government by citizens who had ideological agendas. Ted Kaczynski (the “Unabomber”) and Timothy McVeigh and Terry Nichols (bombed the Alfred P. Murrah Federal Building in downtown Oklahoma City), are just two that come to mind. It is important to recognize that the Second Amendment did not help either of them in their attempts to stop the government which they viewed as tyrannical. Further, their actions served only to increase the fortification of government buildings - they achieved none of their goals in terms of changing the way our government functions.
There have also been militias that have formed and used their Second Amendment rights to stockpile munitions for purposes such as seceding from the US, creating their own laws, or refusing to pay taxes. Supporting the USA and the Constitution is generally labelled “patriotic.” We have a different word for the actions of such militias - we call it “treason.” Is it unpatriotic to suggest that militias shouldn't be able to use the Constitution to help them commit treason?
If one wanted to image nightmare scenarios of attacks on the Federal Government, one could speculate about the use of non-conventional weapons ala The Unabomber, McVeigh and Nichols, etc. Chemical or biological attacks, nuclear weapons, dirty bombs, poisons, and the like, might, possibly be able to take down the government. I would like to believe that there are agents at the Secret Service that spend their careers trying to think up such things, and then devising counter measures. In any case, even if an individual or group were able to conceive, create, and successfully execute such an attack, the right to bear arms would be irrelevant to their plans. The weapons protected by the Second Amendment wouldn't come into play. The government has proven defenses against those - a successful attack would come from some other quarter, as Al-Qaeda showed so terribly in 2001.
So, I believe that the explicitly specified rationale in the Second Amendment is no longer valid. Therefore, the prohibition against infringement upon which it is based is no longer valid. This leaves two options before the American people: (1) allow the government to infringe upon the right to keep and bear arms, or (2) craft a 28th amendment that guarantees this right without any justification or qualification.
I find myself wonder what the authors of the Second Amendment would say if they were alive today and heard my argument that a “well regulated militia” will no longer provide for the security of our free state. Would they agree with me? If so, what would they then say about the right of people to keep and bear arms? Would they conclude that this right may now be infringed since the purpose of the amendment is gone? Or would they insist that there were other compelling reasons to protect the right to bear arms? If they felt that this right must still be maintained, would they agree that a new amendment must be crafted, since the Second Amendment is rendered invalid by its obsolete rationale?