The Problem with the Second Amendment
by Mike Kimel
The Problem with 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.
I am no constitutional scholar, or even an attorney, but I did take American History in high school, and it seems to me that the reason so many people argue about the Second Amendment to the US Constitution is
because nobody, and I do mean nobody, quite likes what it means and how it was intended.
And let’s be blunt, we know precisely what the framers, the signers, and ratifiers of the Constitution thought this amendment meant. See, two years after the Constitution took effect, there were rumblings in Western Pennsylvania, mostly about taxes on whiskey, security issues, and navigation along the Mississippi river. Eventually it all came to a head in the so-called Whiskey Rebellion.
President George Washington, with the support of the legislative and judicial branches of government, raised a militia to deal with the problem. Before we get to what this militia looked like, bear in mind: a sizable fraction of our legislators at the time had been involved in the drafting, signing, and/or ratification of the
Constitution. A Justice of the Supreme Court, James Wilson, himself a signer of the Declaration of Independence and a member of the Committee of Detail which wrote the first draft of the Constitution,
signed off on the order raising the militia. So rest assured, what came next is absolutely, precisely how the Framers of the Constitution collectively interpreted the Second Amendment that they had written.
To make a long story short, men from four states were conscripted into a militia (yes, there were volunteers, but not enough) and sent to put down the rebellion. The next time anyone, on whatever side of the
debate, tells you they are firm supporters of the Second Amendment, ask them if they believe it was intended to allow the Federal government to round up citizens against their will, put them in uniforms, and make them march and fire upon other citizens in order to crush revolts and collect taxes. If they do not, then politely remind them that is the Founding Fathers chose to interpret the Constitution they themselves hashed out, agreed upon, signed and ratified. And then, for grins and giggles, ask them why they are so unpatriotic as
to insist on clinging to an un-American belief that the Founding Fathers would certainly have deemed un-Constitutional
Actually, it appears it’s more “sinister” than you present:http://www.saf.org/LawReviews/Bogus2.htm
Qoute: Like English legislators a century earlier, Madison wrote the Second Amendment to resolve a structural problem. The Constitution had given Congress the power to organize and arm the militia. Focusing on this provision, the anti-Federalists sent a chill down the spine of the South: would Congress, deliberately or through indifference, destabilize the [Page 408] slave system by “disarming” the state militia? Whether Madison personally shared this fear cannot today be known, but there is little doubt that after Richmond this specter plagued many Southerners, including many of Madison’s constituents.
Second, the Second Amendment lives two lives: one in the law and the other in politics, public policy, and popular culture. The hidden history has ramifications in the second realm as well. The Second Amendment takes on an entirely different complexion when instead of being symbolized by a musket in the hands of the minuteman, it is associated with a musket in the hands of the slave holder.
end qoute.
Specific to the discussion of what type of rifles, pistols, etc were meant is a discussion I had with another person. Please note Scalia’a words:
Although Heller ruled that the right to bear arms is an individual right as well as a right of militia, it did not hold that the states or the federal government were unable to regulate the right.
In fact, Scalia specifically opines in dicta:
“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.”
Mike
I would also reference the Colfax Massacre with regard to your slave owner point. The 14 amendment was subdued by the Miller SC when it came to Blacks and state rights.
Slavery was the motivation for the 2nd Amendment, so that southern States could raise their own militias to fight slave rebellions in case northern congressmen would not vote to authorize federal troops to do it. The federal government already had the right to raise an army.
@Zane: As someone raised in the South and as someone who very much believes that the 2nd Amendment refers exclusively to an un-infringed right to bear arms only in a well-regulated militia, I need to ask: Do you have a cite for your assertion that “Slavery was the motivation for the 2nd Amendment?”
You should have saved this post for April Fools. Exactly what do you think would have happened without the Second Ammendment? Wouldn’t the government have conscripted these men and *given* them weapons? After all, you say they were given uniforms.
It’s also useful to contrast the American experience with other countries in which rebels were attacked and rounded up (China, Syria, former Libya, etc) Those countries managed to crush their rebels fine… without a Second Ammendment.
What a terrible analysis and misunderstanding of history.
First you have the logical flaw that because A is followed by B, that A must be the reason for B.
The government creating a militia (and reality is they already had the right to raise an army without the 2A), following the constitution does not indicate causation or intention.
Since the 2A is pretty clear in language, and the founders have historically been on record indicating this is to protect from tyranny, you might want to do more research.
Intent and “in practice” are two different things. The government has used the 2nd amendment to raise a militia (not an army) and put down an insurrection.
zane, joel, marris, milespro:
Lets understand something here and I have touched upon it briefly, SCOTUS has yet to rule upon the 2nd amendment. In past rulings, it has never touched upon the 2nd amendment. Cruikshank, Bradford, and Slaugterhouse were the opinions used to determine whether states had the ability to interfer with the rights as guaranteed by the constitution . . . including the 2nd amendment. SCOTUS has never ruled on the 2nd amendment and what its means. Scalia’s statement comes the closest to what the intent of SCOTUS may be if it takes up 2nd amendment interpretation.
“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.”
Joel: The Slaughterhouse and Cruikshank rulings by the Millewr Court was exactly that, states can deny the rights of the citizns as guaranteed by the constitution. Again reference the Colfax Massacre of blacks and the denial of due process rights – 14th amendment. Under this ruling states could limit the right to bear arms within the state.
marris:
Do you really believe you and your Bushmaster could withstand the force of even a platoon of Army with air support? Theu would not even have to engage you and you would disappear under air attack.
The courts have dened you the right to due process and this would just carry through to you also.
@ Milespro
This is not a misunderstanding of history. There is a considerable amount of research that supports his position and also reveals the deception of those who try and argue how enthusiastic the founders were for guns. In fact CNN just came out with an article debunking a quote taken out of context (or made up) of Thomas Jefferson. So I would try not to come on so hard with your logical falacy and actually look at the historical context this author uses.
alot of you are well educated ,and your arguments are well founded.I am the poor uneducated slob who lives in a high crime area,I have a CCW.last week I was getting gas with my daughter,a man with a hoodie and his hands in his pockets walked in.when I made eye contact with him he looked down.then he got right behind me ,so close I could feel his breath on the back of my neck.by standing so close behind me I was blocking the cameras .then I saw his car was running.I turned around and pulled my jacket back just far enough for him to see my 45.he exited.I never took my gun out of the holster,but I was glad I had it.I have had my C.C.W. for four years,and never used my gun .but this dip-shit pres.,who I voted for is not going to take my guns.because of all his political propaganda there is now a gun shortage, how will his attorney general continue selling guns to the mexican drug cartels .
David:
In a moment of excitement, you will shoot yourself before you shoot him. Who carrys a heavy 45? You are better off with a .327 caliber which has almost the same pressure as a .357 coming out of the barrel. Finally, if he is that close to you; you are not going to pull that gun out in time and he was probably looking for a few bucks. Better to know “wing chun do” for up close fighting.
If you are CCW, the gov has record of you and they “will” take your weapon anytime they want to do so.
David Michel,
Let me preface with: I own a couple firearms myself.
I would say for every story where a gun saved the day, there is an equal and opposite story where the bad guy pulled one out before anyone could react and the consequences were bad. (E.g., http://www.nydailynews.com/news/crime/man-woman-busted-man-shot-gut-brooklyn-diner-cops-article-1.1234247?localLinksEnabled=false#commentpostform)
If the guy with the hoodie had taken out a gun and pointed it at you before you had casually unstrapped yours, before you even noticed him coming (or worse, put it up against your daughter’s temple) the story would have ended very differently. Bad guys have been known to get the drop on trained cops, after all.
Worse, after the fact, a good part of the stories where the bad guy used his get retold as self-defense, and the story sticks if there were no witnesses.
This is not to doubt your story. This is to say, the problem is gun ownership is too easy. There isn’t much keeping guns out of the hands of the mentally unstable, the deranged, drunks, and drug users.
There’s one mid-level right wing blogger who has blogged about his issues with mental illness, and yet last year held a fund-raiser where readers sent him enough money to purchase the weapon of his choice.
I have no problems with people owning guns, or with CCW permits. None at all. But I really worry about how easy it is for bad actors and people who aren’t always in possession of their senses wandering around armed.
marris & Milespro,
Yees, the government had the legal means to conscript people even without the second amendment. But what the founders thought at the time was that the second amendment meant conscripts a) already came with the ability to use a weapon and b) might arrive with a weapon in hand. That eliminates two of your biggest expenses (and a lot of time) if you are planning on sending the militia off to deal with a small insurrection.
Of course, less than a hundred years later, city living meant those fighting in the front lines of the Union Army often had no idea which end of a rifle was which when they first showed up.
There’s no reason to “read” the founders’ intent regarding the militia.
It’s quite explicit in Article 1, Sec. 8:
[Congress shall have the power to] “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”
Reference back to Bill H.s reference to Scalia’s actual opinion. Left out is a critical paragraph which follows immediately the part quoted by Bill H., above. That is, “We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual
weapons.” I’ve elliminated Scalia’s citation of references. In the next paragraph he goes on to explain why such unusual weapons can be regulated in spite of their militgary effectiveness.
“It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right.”
While there have been many legal expert critiques of Scalia’s tortured effort to seperate what he calls the “prefatory clause” from the “operative clause” in order to not make the latter dependent on the former, as aresult he has locked himself and the decision into a corner wherein he motes that regulation of military weapons may be lawful.
David,
Your example demonstrates exactly why untrained people should not be carrying around loaded weapons. You were lucky. Your situation could have gone sideways in so many ways. And on top of that, you had your daughter with you. You placed her in an even more dangerous situation by showing your gun. That’s just stupid, man!
If you find yourself in a situation like that again, grab her and get the hell out of there. Call 911 and let the professionals deal with it.
And to those who, like David Michel, pack a gun (a .45 caliber no less) take note. Mass shoot’em ups have relied primarily on those military style semi-automatic guns, like the M14 cited by Scalia, to do their destructive best. And none of those perptrators were in the act of a robbery or close combat style assault. They were unpredictable loose cannons whose fuses reached powder. They dressed for the kill, but not daily. The point being that perpatrators of mass killing are not recognizable before hand. They’re emtional time bombs with an unpredictable, often unrecognizable, hot button. They are not out there defending themselves and they aren’t carrying self defense style arms. And Scalia’s opinion distinguishes the right of the government to control unusual weapons from hand guns and, though not clearly stated, hunting rifles which rarely have more than one in the chamber and three in the magazine.
The core of your position relies on cherrypicking.
Yes, militias are called up to put down rebellions.
Also to defend against foreign invaders. Also to respond to any catastrophe, such as a natural disaster. Also to end a hypothetical tyrannical domestic regime.
All of which is a subset of self defense, which is also covered in the second amendment.
http://www2.law.ucla.edu/volokh/common.htm
Second amendment dissected and explained, common myths obliterated.
Militia related sauce:
http://www.law.cornell.edu/uscode/text/10/311
a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
In 1886 the Supreme Court in Presser v. Illinois, 116 U.S. 252, held :
“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people (pg.666) from performing their duty to the general government.”
The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that “when a state officer acts under a state law in a manner violative of the Federal Constitution, he “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”